Springer, Lindsey

[Demosthenes]

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 05-6387
(D.C. No. CIV-05-466-F)
(W.D. Okla.)

LINDSEY K. SPRINGER,
Plaintiff-Appellant,

v.

INTERNAL REVENUE SERVICE, ex rel. United States of America, by and through its Officers and Employees, FRED RICE; SCOTT PENNEY; LELAND BOWEN,

DefendantsAppellees.

No. 06-5123
(D.C. No. 06-CV-110-CVE-PJC)
(N.D. Okla.)

LINDSEY K. SPRINGER,
PlaintiffAppellant,

v.

INTERNAL REVENUE SERVICE, ex rel. United States of America, by and through its Officers and Employees,
DefendantAppellee.

No. 06-6268
(D.C. No. CIV-05-1075-F)
(W.D. Okla.)

LINDSEY K. SPRINGER,
PlaintiffAppellant,

v.

INTERNAL REVENUE SERVICE by and through the United States of America; FRED RICE; SCOTT PENNEY; LELAND NEUBAUER,
DefendantsAppellees.

ORDER AND JUDGMENT*


Before HENRY, ANDERSON, and McCONNELL, Circuit Judges.

Plaintiff Lindsey Springer, a tax protester, describes himself as the founder of "Bondage Breakers Ministries," organized in 1992, whose sole purpose is "to expose the violations of the written law committed by the Internal Revenue Service [(IRS)]." R., Doc. 1 at 5, ¶ 9.2 He appeals from three separate judgments, two of which concern his liability for federal income taxes, penalties, and interest for 19901995 and the IRS's attempt to collect. His third appeal is a broader challenge to the IRS's general power to collect failuretofile penalties for 19822006. We have combined the appeals for disposition. Because Springer appears pro se, we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys, but we do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district courts' judgments. Because the appeals are frivolous and brought for purposes of delay, we impose monetary sanctions on Springer. We also propose filing restrictions.

I. Background


The heart of these appeals represents Springer's latest push in a long campaign to challenge his liability for federal income taxes, penalties, and interest, and to delay collection. In 1996, the IRS sent Springer two notices of deficiency concerning unpaid income taxes for 1990 through 1995, years in which Springer filed no federal income tax returns. He challenged the notices in the United States Tax Court, arguing, among other things, that a tax on income amounts to involuntary servitude in violation of the Thirteenth Amendment and that the Sixteenth Amendment does not authorize the Commissioner of the IRS to collect taxes. In upholding the notices of deficiency, the Tax Court characterized Springer's arguments as "nothing but tax protester rhetoric and legalistic gibberish" and imposed a $4,000 sanction because the challenge was frivolous and made only for the purpose of delaying collection. See R., Doc. 16, Ex. 5 at 2 (copy of Springer v. Comm'r, No. 2604596 (T.C. Feb. 10, 1997) (unpublished)). We dismissed Springer's appeal of that decision because he had failed to pay a prior $2,000 sanction this court imposed in a separate frivolous appeal. See R., Doc. 16, Ex. 6 (copy of Springer v. Comm'r, No. 979008 (10th Cir. Oct. 15, 1997) (unpublished order of dismissal)). The Supreme Court denied his petition for a writ of certiorari. Springer v. Comm'r, 524 U.S. 920 (1998).

On March 2, 2005, the IRS sent Springer a notice of intent to levy his assets in order to collect the tax liability adjudicated in the earlier proceeding. See R., Doc. 1, Ex. 9. The notice indicated that the amount owed, including penalties and interest, was $300,071.56. Id. at 2. Springer requested a prelevy collection due process (CDP) hearing pursuant to 26 U.S.C. § 6330, arguing, among other things, that he earned no taxable income for 19901995, but was living off of gifts and donations; that the IRS improperly had determined the amount of his tax liability; and that a provision of the Paperwork Reduction Act of 1995 (PRA) protected him from any penalties arising from his failure to file tax returns for 19901995 because, he claimed, IRS Form 1040 and its variants lacked a valid control number from the Office of Management and Budget (OMB) for those years. The hearing officer assigned to the matter, defendant Scott Penney, informed Springer that he was entitled only to an unrecorded telephonic hearing because the claims he raised were frivolous, and that he would not be permitted to challenge his tax liability because he already had an opportunity to appeal that determination from the notices of deficiency.

On April 25, 2005, one day before the CDP hearing, Springer filed the action underlying appeal No. 056387. He asserted that the claimed tax deficiencies were erroneous and requested a variety of injunctive relief, including that defendants provide an impartial hearing officer, record the hearing, and obtain verification that the underlying tax liability was computed in accordance with all applicable laws and administrative procedures as required by 26 U.S.C. § 6330(c)(1). He also sought an injunction directing the defendants to consider his PRA defense and evidence of errors concerning the underlying tax liabilities, in particular that some of the liabilities were improperly derived from Bureau of Labor statistics and that some were based on a bogus Form 1099.

Defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. They argued that sovereign immunity applied; that the AntiInjunction Act, 26 U.S.C. § 7421(a) (AIA), barred the relief Springer sought; that the Tax Court, not the district court, had exclusive jurisdiction over the CDP matter; that Springer could not use the CDP hearing to challenge the tax liabilities that the Tax Court had upheld; and that he had not exhausted his administrative remedies. Concluding that the AIA barred Springer's action, the district court dismissed the case for lack of subject matter jurisdiction. See Springer v. United States, No. 05466, 2005 WL 2467775, at *24 (W.D. Okla. Oct. 6, 2005) (unpublished) (Springer I).

Meanwhile, Penney held the telephonic CDP hearing on April 26, 2005. On August 16, the Office of Appeals issued notices of determination approving the proposed levy. Springer appealed those determinations in a separate suit filed in federal district court on September 15, 2005, from which appeal No. 066268 arises. Defendants moved to dismiss for substantially the same reasons they advanced in their motion to dismiss in Springer I. The district court took judicial notice of its dismissal order in Springer I, which it characterized as a dismissal based on the Tax Court's exclusive jurisdiction over Springer's underlying income tax dispute, noted that the substance of Springer I and the second lawsuit concerned the same general claims, and dismissed the action on the ground that Springer I barred it under principles of res judicata. See Springer v. United States, No. 051075, 2006 WL 2265521, at *1 (W.D. Okla. Aug. 7, 2006) (unpublished) (Springer II). The court also concluded "that dismissal of this action is appropriate . . . for lack of subject matter jurisdiction for the reasons stated in Defendant's motion." Id. at *1 n.1.

The third appeal, No. 065123, arises from a case Springer filed on February 17, 2006, in which he alleged that he was "the subject of civil actions and criminal investigations in the Northern District and Western District of Oklahoma" involving "the claim or threat of penalty by the [IRS] for failure to supply information upon an information request form labeled Form 1040." No. 065123, R., Doc. 1 at 9, ¶ 39. He asserted that IRS Form 1040 and its variants had not complied with the PRA since 1981 because the OMB number was invalid. On that basis, he requested a declaratory judgment concerning whether the IRS could, among other things, pursue any penalty, civil or criminal, for the years 19822006, ostensibly against either him or others. He also sought a preliminary injunction against the alleged investigations into his failure to supply information on income tax returns. The district court dismissed the case for lack of subject matter jurisdiction under the AIA and because the PRA does not authorize a private right of action but acts as a defense. See Springer v. United States, 447 F. Supp. 2d 1235, 123839 (N.D. Okla. 2006) (Springer III).

II. Discussion


A. Springer I and Springer II

We have conducted a de novo review of the holding in Springer I that the court lacked subject matter jurisdiction under the AIA, see Ambort v. United States, 392 F.3d 1138, 1140 (10th Cir. 2004), and affirm on that basis. We affirm Springer II on the ground that the Tax Court had exclusive jurisdiction over that case. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (explaining that we are free to affirm on any grounds for which there is a sufficient record to permit conclusions of law).

The AIA provides that, subject to certain statutory exceptions, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S.C. §7421(a). The purpose of the AIA "is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund." Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962). Because penalties and interest arising from the failure to pay taxes are assessed as taxes, see 26 U.S.C. § 6665(a)(2), the AIA bars actions seeking to enjoin their assessment. See Nuttelman v. Vossberg, 753 F.2d 712, 714 (8th Cir. 1985) (per curiam) (holding that penalties and interest are subject to the AIA); cf. Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983) (per curiam) (holding that civil penalties imposed under 26 U.S.C. § 6682 for making false statements in connection with withholding are taxes within the meaning of the AIA).

The statutory exception to the AIA that Springer raised in the district court is 26 U.S.C. § 6330(e)(1).3 Section 6330(e)(1) permits a party to seek injunctive relief in a proper court when the IRS initiates a levy during the statutory period of suspension that is triggered by the request for a CDP hearing. Hart v. United States, 291 F. Supp. 2d 635, 645 (N.D. Ohio 2003). Contrary to Springer's argument, the exception is not triggered by the mere issuance of a notice of intent to levy. As the district court correctly determined, Springer had not alleged that the IRS had begun to levy his assets during the pendency of his CDP hearing, and the record indicates that the IRS had in fact suspended collections. Thus, Springer failed to bring himself within this statutory exception.4

Springer also relied on a judicially created exception to the AIA that allows an injunction if it is clear that "under no circumstances could the Government ultimately prevail" and if equity jurisdiction otherwise exists, see Enochs, 370 U.S. at 7. Springer cannot meet either of these requirements. The government ultimately could prevail in levying Springer's assets because the issue of his income tax liability for 19901995 was finally determined in his earlier suit, 26 U.S.C. § 6331(a) authorizes the IRS to impose the levy, and the levy could be sustained if the CDP hearing comported with applicable law. As to the second requirement, an adequate remedy at law will preclude the exercise of equity jurisdiction. See Wyo. Trucking Ass'n v. Bentsen, 82 F.3d 930, 935 (10th Cir. 1996). Springer cannot show the absence of an adequate legal remedy. To the contrary, he already has availed himself of an adequate legal remedy concerning his liability--he litigated in the Tax Court and lost. Additionally, his ability to appeal the result of the CDP hearing under 26 U.S.C. § 6330(d)(1) provides him with an adequate legal remedy concerning the levy procedure.

Springer II was an appeal from the notices of determination issued at the conclusion of the CDP hearing. Springer, however, brought the appeal in the wrong court. Under the statute as it read at the time he filed Springer II, he was required to bring his appeal in the Tax Court, not the district court, because the underlying tax liability concerned income taxes. See 26 U.S.C. § 6330(d)(1) (2000) (providing that an appeal of a CDP determination must be brought to the Tax Court if it has jurisdiction of the underlying tax liability);5 Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004) (per curiam) (Tax Court has jurisdiction over appeals from CDP hearings involving income taxes); accord Marino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004) (per curiam). For this reason, the district court lacked subject matter jurisdiction, and we need not address the preclusive effect of Springer I on Springer II. Springer's argument that one of the notices of determination directed him to appeal to a United States District Court does not defeat the fact that the district court lacked jurisdiction. Parties cannot confer subject matter jurisdiction on a federal court by their actions. Prier v. Steed, 456 F.3d 1209, 1214 (10th Cir. 2006).6

B. Springer III

In Springer III, Springer requested declaratory and injunctive relief based on the public protection provision of the PRA, which he claimed precluded the IRS from collecting any penalties arising from his failure to file a federal income tax return for calendar years 1982 through 2006. Exercising de novo review, see Karr v. Hefner, 475 F.3d 1192, 1200 (10th Cir. 2007) (question of statutory construction reviewed de novo), we affirm the district court on the ground that the PRA creates a defense, not a private right of action, and therefore we need not reach the alternate basis for the district court's disposition, that the AIA barred the action.

The PRA's public protection provision is 44 U.S.C. § 3512. It states:

(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if

(1) the collection of information does not display a valid control number assigned by the Director [of the OMB] in accordance with this subchapter; or

(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.

44 U.S.C. § 3512. The question is whether subsection (b) of the statute provides a right of action or only a defense. The Ninth Circuit has stated that it "is apparent from subsection (b)" that the PRA "authorizes its protections to be used as a defense. [It] does not authorize a private right of action." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 844 (9th Cir. 1999). We agree. In subsection (b), the meaning of the phrase "defense, bar, or otherwise" is the pivotal consideration. Applying the statutory canon of ejusdem generis, we readily conclude that "or otherwise" in § 3512(b) embraces only procedural devices similar to complete defenses or bars; the phrase does not function to expand subsection (b) into a right of action. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 11415 (2001) (explaining that ejusdem generis is "the statutory canon that where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words") (quotation and alteration omitted).

Our conclusion is supported by the language that follows "defense, bar, or otherwise." Although, as Springer points out, that language permits the defense to be raised "at any time," it may only be raised at any time "during the agency administrative process" or in a "judicial action applicable" to that process. 44 U.S.C. § 3512(b). Thus, § 3512 may only be invoked as a defense "at any time during ongoing proceedings." Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 244 F.3d 144, 150 (D.C. Cir. 2001) (discussing Saco River Cellular, Inc. v. F.C.C., 133 F.3d 25, 31 (D.C. Cir. 1998)).

Springer did not raise the PRA as a defense or in a judicial action applicable to any agency administrative process. Rather, he raised it as a claim in an independent action, a fact that is underscored by the relief sought under the PRA--an injunction against conduct alleged to have occurred in connection with other pending civil actions and criminal investigations. Because § 3512(b) does not provide a right of action, the district court properly dismissed the case.

III. Monetary Sanctions and Filing Restrictions


A. Monetary Sanctions

Defendants have filed motions for sanctions in appeal No. 056387 (from Springer I) and appeal No. 065123 (from Springer III), each of which requests a flat fee of $8,000 to compensate them for attorney's fees and costs in defending what they argue are frivolous appeals. Springer thus has had notice and an opportunity to respond, as required by Braley v. Campbell, 832 F.2d 1504, 1514 (10th Cir. 1987). This court has the power to award just damages and single or double costs if the court "determine[s] that an appeal is frivolous" or brought for purposes of delay. Fed. R. App. P. 38; 28 U.S.C. § 1912. "An appeal is frivolous when the result is obvious, or the appellant's arguments of error are wholly without merit." Braley, 832 F.2d at 1510 (quotation omitted).

We determine that appeal No. 056387 and appeal No. 065123 are frivolous and brought for purposes of delay. When the IRS issued its notices of deficiency in 1996, Springer had two options, to pay the tax and sue for a refund under 26 U.S.C. § 7422 or to petition the Tax Court for a redetermination under 26 U.S.C. § 6213(a). See Taylor v. Allan, 204 F.2d 485, 486 n.4 (10th Cir. 1953). He chose the latter option, and the Tax Court ruled against him, a judgment that is now incontestable. When the IRS issued its notice of intent to levy, Springer properly requested a CDP hearing, but he challenged that hearing in a jurisdictionally defective action, Springer I, then took a frivolous appeal from the dismissal of that action. Springer III was dismissed as a procedurally improper means of challenging the government's power to impose penalties arising from the failure to file federal income tax returns for 19822006, and his appeal from that dismissal also was frivolous. Moreover, many of his arguments take issue with the fact of his underlying liability for 19901995, a fact that is no longer open to challenge. Accordingly, we conclude that the results in appeal No. 056387 and appeal No. 065123 are obvious, that Springer's arguments are wholly without merit, and that these appeals were brought to delay further the collection of his federal income tax liability for 19901995. Defendants' motions, therefore, have a sound basis.7

In support of their requests for a flat fee of $8,000 in both Springer I and Springer III, defendants state that "[a]ccording to the records of the Tax Division of the Department of Justice, the average expense in attorney salaries and other costs incurred by this office in the defense of frivolous taxpayer appeals in which sanctions were awarded during 2004 and 2005 is approximately $11,042." No. 056387, Appellees' Mot. for Sanctions at 7; see also No. 065123, Appellees' Mot. for Sanctions at 56 (substantially the same). We granted a similar request for $8,000 in Kyler v. Everson, 442 F.3d 1251, 125354 (10th Cir. 2006). But under the unique circumstances of Springer I and Springer III, we conclude that just damages are $4,000 for each of the two appeals, for a total of $8,000.8 See Stafford v. United States, 208 F.3d 1177, 1179 (10th Cir. 2000) (granting request for $4,000 sanction in frivolous tax appeal). We expressly note that this award is not meant to establish a presumptive or flatfee sanction to be used in all frivolous tax appeals.

B. Filing Restrictions

Federal courts have the inherent power under 28 U.S.C. § 1651(a) to regulate the activities of abusive litigants by imposing carefully tailored restrictions under appropriate circumstances. See Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315 (10th Cir. 1994) (per curiam); Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam). Injunctions restricting further filings are appropriate where (1) the litigant's lengthy and abusive history is set forth; (2) the court provides guidelines as to what the litigant may do to obtain its permission to file an action; and (3) the litigant receives notice and an opportunity to oppose the court's order before it is implemented. See Tripati, 878 F.2d at 35354.

As discussed above, these combined appeals are frivolous. Additionally, Springer has a long history of filing meritless federal actions and appeals pro se. We found his first tax appeal frivolous and imposed a $2,000 sanction. See Springer v. IRS, Nos. 955072 & 955142, 1996 WL 164459 (10th Cir. Apr. 8, 1996) (unpublished). We dismissed four other taxrelated appeals because Springer had not paid that sanction. See Springer v. United States, No. 985056 (10th Cir. June 15, 1998) (unpublished order of dismissal); Springer v. United States, No. 975095 (10th Cir. Oct. 16, 1997) (unpublished order of dismissal); Springer v. United States, No. 975093 (10th Cir. Oct. 16, 1997) (unpublished order of dismissal); Springer v. Comm'r, No. 979008 (10th Cir. Oct. 15, 1997) (unpublished order of dismissal). In yet another tax case where Springer was a plaintiff but not an appellant, we noted the district court had properly granted summary judgment against the plaintiffs on their claim that federal taxation amounted to involuntary servitude and imposed monetary sanctions for the frivolous appeal. See Buckner v. United States, No. 985057, 1999 WL 61071, at *1 (10th Cir. Feb. 4, 1999) (unpublished). And as noted above, the Tax Court imposed a $4,000 sanction for Springer's frivolous appeal from the notices of deficiency concerning his 19901995 income tax liability.

Springer has not found any more litigation success outside of the tax arena. In Springer v. Alabama, we imposed a $1,000 sanction on Springer for filing a frivolous appeal of the district court's dismissal, on sovereign immunity grounds, of his claim that the respective ballot laws of all fifty states violated his constitutional right to run for president. See No. 995227, 2000 WL 305492, at *1 (10th Cir. Mar. 24, 2000) (unpublished). He also brought a similar suit against the election officials of all fifty states. In that case, we affirmed the district court's dismissal because Springer had failed to identify a legal theory entitling him to relief, see Springer v. Balough, No. 005071, 2000 WL 1616246, at *2 (10th Cir. Oct. 30, 2000) (unpublished), and we later affirmed the district court's assessment of costs against him, see Springer v. Rancourt, 17 F. App'x 824, 826 (10th Cir. 2001). We summarily affirmed the district courts' dismissal of Springer's libel and slander claims in Springer v. The Infinity Group Co., No. 985182, 1999 WL 651391, at*2 (10th Cir. Aug. 26, 1999). And we affirmed the dismissal of another case in which Springer asserted that the defendants had breached a contract to pay a $1,000,000 reward for information leading to the arrest and conviction of anyone involved in the assassination of President John F. Kennedy on the ground that Springer had sued the wrong defendant. See Springer v. Hustler Magazine, No. 995117, 1999 WL 979242, at *2 (10th Cir. Oct. 28, 1999) (unpublished).

In view of his abusive pattern of filing frivolous or malicious actions and appeals pro se, we must restrict Springer's access to the courts. "The right of access to the courts is neither absolute nor unconditional, and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious." Winslow, 17 F.3d at 315 (quotation and alteration omitted). "[W]here, as here, a party has engaged in a pattern of litigation activity which is manifestly abusive, restrictions are appropriate." Id. (quotation omitted).

Our filing restrictions must be narrowly tailored. See Tripati, 878 F.2d at 352. But as our review indicates, Springer has not limited the scope of his baseless attacks to the tax arena or a particular set of defendants. Thus, Springer's litigation history does not present circumstances similar to those we recently considered in Sieverding v. Colorado Bar Association, 469 F.3d 1340, 1345 (10th Cir. 2006), where we modified a district court's filing restrictions by limiting them to filings against only those persons and entities against whom the plaintiff had a history of proceeding, without regard to subject matter. Therefore, subject to Springer's opportunity to object, as described below, we propose the following reasonable filing restrictions on future filings by Springer "commensurate with our inherent power to enter orders 'necessary or appropriate' in aid of our jurisdiction." Winslow, 17 F.3d at 315 (quoting 28 U.S.C. § 1651(a)).

Springer is ENJOINED from proceeding in this court as a petitioner in an original proceeding or as an appellant in a civil matter (except in these combined appeals) unless he is represented by a licensed attorney admitted to practice in this court or unless he first obtains permission to proceed pro se. To obtain permission to proceed pro se, Springer must take the following steps:

1. File a petition with the clerk of this court requesting leave to file an original proceeding or to proceed pro se on appeal. If Springer seeks to proceed pro se on appeal, he must file the petition with the clerk of this court not more than ten days after filing his notice of appeal in the district court;

2. Include in the petition the following information:

A. A list of all lawsuits currently pending or filed previously with this court, including the name, number, and citation, if applicable, of each case, and the current status or disposition of the appeal or original proceeding; and

B. A list apprising this court of all outstanding injunctions or orders limiting Springer's access to federal court, including orders and injunctions requiring him to seek leave to file matters pro se or requiring him to be represented by an attorney, including the name, number, and citation, if applicable, of all such orders or injunctions; and

3. File with the clerk of this court a notarized affidavit, in proper legal form, which recites the issues Springer seeks to present, including a short discussion of the legal basis asserted therefor, and describing with particularity the order being challenged. The affidavit also must certify, to the best of Springer's knowledge, that the legal arguments being raised are not frivolous or made in bad faith, that they are warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that the appeal or other matter is not interposed for any improper purpose such as delay or to needlessly increase the cost of litigation, and that he will comply with all appellate and local rules of this court. The affidavit must be filed with the petition and is therefore subject to the same tenday filing deadline as the petition in the case of a pro se appeal.

These documents shall be submitted to the clerk of this court. The matter will be dismissed for failure to prosecute if the required documents are not submitted, are submitted in an improper form, or are untimely submitted. If the matter is not dismissed for failure to prosecute, the clerk shall forward the documents to the Chief Judge or the Chief Judge's designee for review to determine whether to permit Springer to file an original proceeding or to pursue an appeal. This review will take into account the preclusive effect of the Tax Court's determination in Springer v. Comm'r, No. 26045-96 (T.C. Feb. 10, 1997) (unpublished), as to the fact of Springer's liability for federal income taxes, penalties, and interest for 1990-1995 and the government's right to collect that liability, matters that are not subject to further litigation. Without the approval of the Chief Judge or the Chief Judge's designee, the matter will be dismissed. If the Chief Judge or the Chief Judge's designee approves the petition, an order shall be entered indicating that the matter shall proceed in accordance with the Federal Rules of Appellate Procedure and the Tenth Circuit Rules.

Springer shall have ten days from the date of this order and judgment to file written objections to these proposed filing restrictions. See Winslow, 17 F.3d at 316. The response shall be limited to fifteen pages. See id. If Springer does not timely file objections, the filing restrictions shall take effect twenty days from the date of this order and judgment, and the filing restrictions shall apply to any matter filed after that time, except for further filings in these combined appeals. Id. at 31617. If Springer does file timely objections, the filing restrictions shall not take effect until after this court has ruled on those objections.

IV. Conclusion


The judgments of the district courts are AFFIRMED. Appellees' motion for sanctions in appeal No. 056387 is GRANTED IN PART in the amount of $4,000. Appellee's motion for sanctions in appeal No. 065123 is GRANTED IN PART in the amount of $4,000. It is ORDERED that, within thirty days of the date this order and judgment is filed, Springer shall make arrangements with appellees' counsel for payment of the sanctions. It is FURTHER ORDERED that Springer shall pay the sanctions in accordance with those arrangements.

Springer's motion to file a thirtytwo page reply brief in appeal No. 056387 is GRANTED. Springer's other pending motions are DENIED.

Entered for the Court

Stephen H. Anderson

Circuit Judge


________________________________________

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases are therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

2 References to the record are to the record in appeal No. 05-6387 unless otherwise noted.

3 In relevant, part, 26 U.S.C. § 6630(e)(1) provides:

f a [CDP] hearing is requested under subsection (a)(3)(B), the levy actions which are the subject of the requested hearing . . . shall be suspended for the period during which such hearing, and appeals therein, are pending. In no event shall any such period expire before the 90th day after the day on which there is a final determination in such hearing. Notwithstanding the provisions of section 7421(a), the beginning of a levy or proceeding during the time the suspension under this paragraph is in force may be enjoined by a proceeding in the proper court, including the Tax Court.

4 The district court also concluded that to the extent he relied on the § 6330(e)(1) exception, Springer had brought his claims in the wrong court. Because we agree that the IRS had suspended its collection activities and therefore Springer could not invoke the exception, we need not address the district court's alternate conclusion.

5 In 2006, Section 6330(d)(1) was revised to direct all appeals from CDP hearings to the Tax Court. See Pub. L. No. 109280, § 855(a), 120 Stat. 780, 1019 (2006). The revision does not affect our review.

6 In view of our jurisdictional disposition, we do not reach the merits of Springer I and Springer II. But we note that res judicata, which we may raise sua sponte, would bar those actions to the extent Springer challenges the fact of his liability for income taxes, interest, and penalties for 19901995. See Arizona v. California, 530 U.S. 392, 412 (2000) (holding that sua sponte application of res judicata is appropriate in "special circumstances," including when court is on notice that it has previously decided a matter); United States v. Sioux Nation of Indians, 448 U.S. 371, 433 (1980) (Rehnquist, J., dissenting) (explaining that res judicata is a doctrine adopted by the courts to prevent litigants from unduly consuming the time of the courts by seeking to relitigate matters already decided); MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (setting forth test for application of res judicata). Springer's barred challenge to his tax liability for 19901995, which has unduly consumed judicial resources, lends further support for the filing restrictions we propose below.

7 Like Springer I, Springer II was a jurisdictionally defective challenge to the CDP hearing, and the appeal from Springer II also is frivolous. Because the government has not asked for sanctions in that appeal, we base our award of monetary sanctions on the other two appeals.

8 Although we have remanded cases to the district court to make findings of fact related to an award of just damages, see, e.g., Beilue v. Int'l Bhd. of Teamsters, Local No. 492, 13 F. App'x 810, 815 (10th Cir. 2001) (unpublished), Springer has not opposed the amount that defendants request, and remand therefore is unnecessary. (We cite Beilue for informational purposes only, not as precedent. See 10th Cir. R. 32.1(A).)

[asmith]

I find it interesting that no cases are cited on Quatloos regarding the PRA for the time period following the PRA of 1998 where Congress made it clear that the IRS and its 1040 ARE bound to comply with the terms of the PRA.

I also found it interesting that there is no mention of the following case where Springer was an assistant to the Defense Attorney. The day before trial, The DOJ begged the judge to drop all of the charges because they had just received the documents illustrating that the PRA defense was about to crush their case.
If anyone can conclude anything different from the following, I am all ears.
1040 Checkmate?
DOJ Dismisses Felony Tax Prosecution--With Prejudice--After PRA Defense Raised

Evidence OMB Complicit In Income Tax Fraud

DOJ & IRS Petitioned To Explain

On May 12, 2006, in Peoria, Illinois, the attorney for the U.S. Department of Justice (DOJ) begged the court to dismiss all charges against IRS victim Robert Lawrence in federal District Court.

The motion for dismissal came on the heels of a surprise tactic by Lawrence’s defense attorney Oscar Stilley. The tactic threatened exposure of IRS’s on-going efforts to defraud the public. The move put DOJ attorneys in a state of panic that left them with only one alternative: beg for dismissal, with prejudice.

Stilley’s tactic paid off. Sixty days earlier, the DOJ had indicted Lawrence on three counts of willful failure to file a 1040 form, and three felony counts of income tax evasion. The federal Judge dismissed all charges with prejudice, meaning the DOJ cannot charge Lawrence with those crimes again.

The trial was to have started on Monday morning, May 15.

On Wednesday, May 10, Stilley mailed a set of documents to the DOJ in response to DOJ’s discovery demands. The documents revealed to DOJ for the first time that Lawrence was basing his entire defense on an act of Congress, 44 U.S.C. 3500 – 3520, also known as the "Paperwork Reduction Act" (PRA).

In Section 3512 of the Act, titled "Public Protection," it says that no person shall be subject to any penalty for failing to comply with an agency’s collection of information request (such as a 1040 form), if the request does not display a valid control number assigned by the Office of Management and Budget (OMB) in accordance with the requirements of the Act, or if the agency fails to inform the person who is to respond to the collection of information that he is not required to respond to the collection of information request unless it displays a valid control number.

In Section 3512 Congress went on to authorize that the protection provided by Section 3512 may be raised in the form of a complete defense at any time during an agency’s administrative process (such as an IRS Tax Court or Collection and Due Process Hearing) or during a judicial proceeding (such as Lawrence’s criminal trial).

In sum, the PRA requires that all government agencies display valid OMB control numbers and certain disclosures directly on all information collection forms that the public is requested to file. Lawrence's sole defense was he was not required to file an IRS Form 1040 because it displays an invalid OMB control number.

Government officials knew that if the case went to trial, it would expose the fraudulent, counterfeit 1040. They also must have known that a trial would expose the ongoing conspiracy between OMB and IRS to publish 1040 forms each year that those agencies knew were in violation of the PRA. That would raise the issue that the Form 1040, with its invalid control number, is being used by the government to cover up the underlying constitutional tort--that is, the enforcement of a direct, unapportioned tax on the labor of every working man, woman, and child in America.

Any information collection form, such as IRS Form 1040, which lacks bona fide statutory authority or which conflicts with the Constitution, cannot be issued an OMB control number. If a control number were issued for such a form, the form would be invalid and of no force and effect.

Under the facts and circumstances of the last 24 years, it is safe to say that IRS Form 1040 is a fraudulent, counterfeit, bootleg form. Government officials responsible for this fraud should be investigated and face indictment for willfully making and sponsoring false instruments.

Caught between a rock and a hard place, the DOJ and IRS decided not to let the Lawrence case proceed because it would reveal one critical and damning fact:

The Paperwork Reduction Act protects those who fail to file IRS's bootleg Form 1040

The DOJ knew that it stood a significant chance of losing the case, and if that happened, the press and others would quickly spread the word and leave only fools to ever file a 1040 again. Oscar Stilley’s pleadings and documents made these points quite clear:



IRS Form 1040 violates the federal Paperwork Reduction Act and is therefore a legally invalid form.

Under the Public Protection clause of the PRA, no person can be penalized for failing to file a 1040 if the IRS fails to fully comply with the PRA.

The PRA statutes explicitly provide that a PRA challenge is a complete defense and can be raised in any administrative or judicial proceeding.

The IRS Individual Form 1040 has not complied with--and cannot comply with--the requirements of the PRA because no existing statute authorizes the IRS to impose or collect the federal income tax from individuals. That lack of bona fide authority makes it impossible for IRS to avoid violating the PRA.
We The People Foundation has researched the facts, the law, and the circumstances surrounding this case, and has determined that:


A public trial would have opened a "Pandora’s box" of legal evidence and government testimony under oath that would establish the IRS 1040 form as both fraudulent and counterfeit.

Oscar Stilley’s PRA defense “checkmated” the DOJ and IRS.

The Office of Management and Budget appears to have been complicit with IRS in deceiving the public and in helping perpetuate the 1040 fraud by promulgating federal regulations that negate the plain language of the PRA laws passed by Congress and by allowing the IRS to continually skirt the explicit requirements of those statutes.
Accordingly, We The People Foundation has petitioned the U.S. Attorney General, the IRS Commissioner, and the Director of the OMB, requesting an official explanation of their conduct in Peoria.

See the petition here. It includes links to all relevant statutes, regulations, court decisions, Federal Register publications, law review articles, Lawrence case pleadings, and the discovery documents sent by defense counsel Stilley to the DOJ.

[Demosthenes]

I also found it interesting that there is no mention of the following case where Springer was an assistant to the Defense Attorney.

You find no mention because those threads took place a year ago.

[asmith]

The only post I see under the Lindsey Springer heading, is the one I replied to. It seems only fair that if you are going to post his failures, you should post his victories as well.

[Demosthenes]

The guy doesn't have any victories.

[asmith]

Well, I posted one. Here is another from 2000.


http://yannone.blogspot.com/search/labe ... %20Harrell

If aquittals aren't victories in your eyes, then I am not sure how to convince you of anything. It seems you are only interested in pouncing on those you have deemed the enemy while ignoring the facts. I saw in one of the rebuttals, regarding the PRA, where it was said that the PRA theory is flawed because the 1040 DOES have an OMB number. It wasn't lost on me that the author didn't say that the 1040 has a "valid" OMB number meeting the certification requirements of the PRA of 1998. If the law says that an OMB number can only be used for up to 3 years and the 1040 has carried the same number for around 25 years, it doesn't take a genius to see that something isn't right. Especially, in light of the dismissal in the Lawrence case.

[Demosthenes]

All you have to do is read the Lawrence case, and you'll see that Springer has lied profusely about why the charges were dismissed.

And by the way, when is Whitey's new criminal trial going to take place?

[asmith]

I have never seen a government response (and likely never will) so how can one say that Springer is lying? At worst, I would say you could accuse him of speculating. If there is a link to an official government response that you know of, I'd be interested in seeing it. Not that I would assume the government is telling the truth or lying, but I'd still be curious.

[Demosthenes]

Wow, ASmith formed an opinion about the Lawrence dismissal without actually reading the case documents. Imagine that.

[asmith]

A troll? Been playing a little bit too much D&D?

I read the motion to dismiss which contained nothing as to why they were asking for the dismissal. I guess you don't find that the least bit unusual.

[Demosthenes]

A troll? Been playing a little bit too much D&D?

I read the motion to dismiss which contained nothing as to why they were asking for the dismissal. I guess you don't find that the least bit unusual.

Wow, he read a single document. How impressive.

[wserra]

Why don't you read the various orders?

By order dated July 31, 2006 - as Demo says, almost a year ago - Judge Mihm denied Lawrence's motion for costs and attorneys' fees. In that order, he explained why he dismissed the case:

the IRS revenue agent and special agent assigned to this case reviewed certain tax calculations in preparation for trial. At that time, the agents discovered that the calculations of Lawrence’s tax liabilities for 1999 and 2001 were incorrect.... On May 12, 2006, the Court held another telephone hearing to determine whether the issues raised in the Government’s motion to continue had been cured. The parties indicated that the issues were cured and that the Government had researched the PRA issue and planned to file a motion in limine regarding the PRA defense. Accordingly, the Government withdrew its motion to continue the trial date.

Additionally, during the telephone hearing on May 12, 2006, the Government informed the Court and the Defendant that the Government had discovered errors in the dollar amounts set forth in the indictment. The Government orally moved to amend the indictment by interlineation. Defense counsel objected and the Court denied the motion. Later the same day, the Government moved to dismiss all of the counts against Lawrence.
...
Lawrence spends numerous pages of his brief addressing the merits of the PRA defense and arguing that even though the Seventh Circuit found that the PRA of 1980 was not a valid defense to the allegations in Lawrence’s indictment, that the PRA of 1995 would provide Lawrence with that defense. However, Lawrence has failed to cite any cases that support his argument. He claims that the law is clear on this point; however, not one court has held that the PRA of 1995 is a complete defense to a prosecution for a failure to file income taxes. Accordingly, Lawrence cannot argue that the Government’s indictment of Lawrence was frivolous or vexatious.
...
The Court has no reason to doubt the Government’s assertions regarding when they discovered the errors in calculations or that the jury’s confidence may have been undermined by the existence of the errors. The Court finds that these subsequent developments do not establish that the Government acted in
bad faith.

The trial court thus found that the PRA argument was likely not valid, and in any event not the reason for the dismissal. The Seventh Circuit affirmed by order dated March 26, 2007.

There, happy?

[asmith]

I guess if i was looking for a forum full of smart-asses, I came to the right place.

If the case was dismissed, at the last minute, due to calculation errors, why did they ask that the case be dismissed with prejudice? Is it not true that dismissal with prejudice means that they cannot bring further action in the future? If that is so, it begs the question....why are you guys so determined to stand up for the government? Don't you want to know why they want this guy to just go away?

I saw a forum which you guys dedicated to Springer. If you are not interested in civil discussion, just say so. The childish remarks and name calling of those with whom you disagree does not constitute a defense of your position.

[asmith]

With that said...I rest my case. Apparently the Court agreed that the DOJ could not win with a proper PRA defense being initiated. Therefore, they granted the request to dismiss with prejudice to keep the Defense's evidence from coming before the Jury and the general public. If it was a simple matter of a miscalculation, this would not have happened.

[Demosthenes]

If it was a simple matter of a miscalculation, this would not have happened.

And you wonder why people don't take you seriously.

[wserra]

I guess if i was looking for a forum full of smart-asses, I came to the right place.

Gee, who was it who came here and wrote

The day before trial, The DOJ begged the judge to drop all of the charges because they had just received the documents illustrating that the PRA defense was about to crush their case.

without even having read the (readily available) court documents? Instead, this person just cut-and-pasted from Bob "Send Me More Money So I Can Lose Some More Cases" Schulz - a truly reliable source. And then, when people here take the time to post accurate information (such as how the judge in the case - who ought to know - says that the poster's conclusions are completely wrong), the gracious poster whines and moans about how he's treated.

If you won't take the time to research the subject of your post before opining about it, at least ask about it, rather than tell people who really do know better how things are.

If the case was dismissed, at the last minute, due to calculation errors, why did they ask that the case be dismissed with prejudice?

Not being the government, I couldn't tell you. Maybe they were concerned about the statute of limitations. Maybe they thought that their error fatally compromised any future case they might bring about the years in question.

Is it not true that dismissal with prejudice means that they cannot bring further action in the future?

Generally yes. Mirabile dictu.

If that is so, it begs the question....why are you guys so determined to stand up for the government?

I don't stand up for the government. I have gotten acquittals in high-profile cases against the government, and have multiple six and seven figure verdicts and settlements against the government. What have you done?

I stand up for what's true. The government can be right, you know.

[wserra]

The lawyers here will correct me, but when a case is dismissed WITH prejudice, it means that court considers the matter over and done with and can never, ever be brought before the court again.

Usually. Except when it doesn't.

I addressed this subject in some detail in the old thread.

[Famspear]

From: Famspear
Monday, May 21, 2007

Dear readers:

User asmith writes:

"If the case was dismissed, at the last minute, due to calculation errors, why did they ask that the case be dismissed with prejudice? Is it not true that dismissal with prejudice means that they cannot bring further action in the future?"

I'm not sure what asmith is confused about, but I will try to address the questions here. When a case is dismissed "with prejudice" this simply means that the parties cannot relitigate that particular case. The legal doctrine is called "res judicata." Obviously, as is clearly the case based on examination of the documents in the court record, the government lawyers in this case determined that they could not reasonably expect to obtain convictions on the facts of this case, based on miscalculations made by IRS agents -- based on the defendant's own tax records. So it's unclear why the request for dismissal would NOT have been intended to be legally final (ie., "with prejudice", with a "res judicata" effect"). I think you're reading too much into a routine legal procedure.

One of the arguments that has been raised by various tax protesters is that this case was somehow dismissed because of the frivolous OMB control number argument (the PRA argument). The court record shows otherwise, as other contributors have already noted. In particular, see the trial court's decision rejecting Mr. Lawrence's request for attorney fees, etc., and the appeals court's rejection of Mr. Lawrence's appeal (docket entry 39 on March 26, 2007).

Here is some of the language from the March 26, 2007 decision of the Court of Appeals for the 7th Circuit:

"According to Lawrence, the Paperwork Reduction Act of 1995 (PRA) required the Internal Revenue Service to display valid Office of Management and Budget (OMB) numbers on its Form 1040 [ . . . ]. Lawrence argues that the PRA by its terms prohibits the government from imposing a criminal penalty upon a citizen for the failure to complete a form where the information request at issue does not comply with the PRA. Lawrence never explains how this argument is even relevant to the three counts involving tax evasion, but even as to the other three counts, it must fail [ . . . ] Lawrence's brief represents an attempt to prove that the PRA could present a valid defense to the criminal charges. Yet Lawrence conceded at oral argument that no case from this circuit establishes such a proposition, and in fact Lawrence cites no caselaw from any jurisdiction that so holds. In contrast, the government referenced numerous cases supporting its position that the PRA does not present a defense to a criminal action for failure to file income taxes [ . . . ] Lawrence provides no explanation of how government conduct can be vexatious, frivolous, or in bad faith when there is no law contrary to it." [from page 2 of the Judgment, United States v. Lawrence, United States Court of Appeals for the Seventh Circuit, No. 06-3205, at entry docket entry 39, on March 27, 2007.]

Another point that I think might be raising some confusion is that the final judgment (ie., "with prejudice") relates only to this case. A dismissal with prejudice in this case does not prevent the government from bringing an indictment and obtaining a conviction for tax evasion and failure to file for a different year. Each tax year is a separate legal problem for any taxpayer. That means that even if I were acquitted of (or has my case dismissed with prejudice with respect to) willfully filing false tax returns for 2003 and 2004, for example, that would not prevent the government from later coming back and obtaining convictions for, say, year 2002, or year 2005, or 2006, etc.

I hope this clears some of this up.

Yours, Famspear
May 21, 2007

[Famspear]

Date: Monday May 21, 2007
From: Famspear

Ooops - The date of the 7th Circuit decision is incorrectly listed 2 different ways above (March 26 and March 27) - typo error. The correct date is March 26, 2007.

Also, as another editor pointed out, the "res judicata" effect of a court action does not preclude an appeal. In this case, Lawrence appealed the trial court's decision not to allow him to recover a reimbursement for his own attorney's fees. The 7th Circuit decision was a decision upholding the trial court's judgment against Lawrence on that point.
Yours, Famspear

[asmith]

Thanks. Although I was aware that the "prejudice" only applied to this case, I did not know what you brought out concerning the Appeals.

I can see where the PRA would not be a valid defense except for matters relating to the "penalties" for failure to file. In the revised Act (1998 I believe), it plainly states that a person cannot be penalized for failure to provide information on an information request form that does not carry a "valid" control number and which has not been "properly" certified, etc.

The million dollar question, that to me has not been fairly ruled on, is whether or not the OMB number, currently being used, is valid and properly secured. Furthermore, is it legal to use the same control number for more than one form? The Act says no, but the Courts appear to be totally ignoring that. They have also totally ignored that the application for a OMB number (if the information is required by the citizen) has to state the statute imposing the requirement. All of the discussions I have read say that the application has never contained the statute. Assuming that is the case (and I have never seen it disputed), it seems pretty clear that the OMB number has never been "properly" certified by the OMB. The OMB does not have the authority to waive Congressionally imposed requirements.