Christensen v. Ward
| Decision Date | 29 June 1990 |
| Docket Number | 89-4100,Nos. 89-4099,s. 89-4099 |
| Citation | 916 F.2d 1462 |
| Parties | 90-2 USTC P 50,520 Edward D. CHRISTENSEN, Plaintiff-Appellant, v. Brent D. WARD, C. William Ryan, Tena Campbell, Randy G. Durfee, Richard A. Jones, Bruce Jenkins, David K. Winder, David Sam, Calvin Gould, Daniel A. Alsup, Ronald N. Boyce, Carol Fay, D.E. Pecorella, Frank Pritchett, Linda S. Jernigan, Lawnie C. Mayhew, Dennis Rees Packard, and John and Jane Does 1 Through 100, Defendants-Appellees. Edward D. CHRISTENSEN, Plaintiff-Appellant, v. Walter T. McGOVERN, John C. Merkel, David B. Bukey, Jean S. Anderson, Robert M. Taylor, Clifford J. Wallace, Thomas Tang, David Thompson, Edwin Meese, III, Kirk C. Lusty, Jules G. Korner, III, John P. Moore, Oliver Seth, Wayne E. Alley, Michael L. Paup, William H. Rehnquist, Byron R. White, William J. Brennan, Harry A. Blackmun, Thurgood Marshall, John Paul Stevens, Anthony M. Kennedy, Sandra D. O'Connor, Antonin Scalia, and John and Jane Does 1 Through 100, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward D. Christensen, plaintiff-appellant, pro se.
Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Jonathan S. Cohen, and Howard M. Soloman, Tax Div., U.S. Dept. of Justice, Washington, D.C.; Dee V. Benson, U.S. Atty., of counsel, Salt Lake City, Utah, for defendants-appellees.
Before LOGAN, SEYMOUR and ANDERSON, Circuit Judges.
These cases are another chapter in Mr. Christensen's quarrel with the government over federal taxes, including his conviction and imprisonment for failure to file returns beginning in 1972, the subsequent assessment of taxes against him, and the collection of his liabilities through the seizure and sale of property. Having had or, in some instances, having waived his day in court on the merits of both civil and criminal proceedings against him, all without success, Mr. Christensen has now sued almost everyone in the government who has disagreed with him, from the Supreme Court to IRS agents. One suit was filed in state court and removed to federal court. The other suit was filed in federal court. The district court opinions filed on May 8 and June 2, 1989, copies of which are attached hereto, identify the parties sued and describe and address Mr. Christensen's contentions in detail. For the reasons set forth in the district court's opinion of June 2, 1989, the court granted the respective defendants' motions to dismiss pursuant to Fed.R.Civ.P. 12(b) and 56. 1
On appeal Mr. Christensen raises the following issues:
1. Whether Case No. 88-C-0934J was properly removed from State Court to Federal Court?
2. Whether acts of Defendants was [sic] properly certified by the Attorney General, as within scope of duty?
3. Whether dismissal without jury trial was error?
4. Whether bias in the District Court denied Christensen due process of law?
5. Whether dismissal of Christensen's cases was lawful?
We affirm the decision of the district court in these cases substantially for the reasons, and on the authorities, contained in the district court's opinions attached hereto. It is unnecessary to determine whether the lack of a formal certification by the Attorney General in addition to the unmistakable position of the Department of Justice in pleadings filed in these actions, prevents the applicability of 28 U.S.C. Sec. 2671, et seq. Based on the allegations of the complaints the defendants are clearly immune from suit. Mr. Christensen's Seventh Amendment right to a jury trial was not abridged, because, as explained in the district court's opinions, the complaints failed as a matter of law to present an issue for trial. See Fed.R.Civ.P. 12(b) and 56. Finally, the allegation of bias against the district judge, citing 28 U.S.C. Sec. 455, lacks merit for multiple reasons including the fact that it is based essentially on the improper ground that the district court disagreed with Mr. Christensen's contentions, and ruled against him. See Willner v. University of Kansas, 848 F.2d 1023 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). The conclusory allegation of lack of due process fails to add any additional dimension to the issue.
The government has requested sanctions for a frivolous appeal, and Mr. Christensen has had an opportunity to respond in his reply brief. Clearly, Mr. Christensen's argument concerning the absence of a certificate by the Attorney General is not frivolous, although not dispositive of any issue before us. However, the basic rationale underlying Mr. Christensen's actions and arguments, both below and in this court, compels our attention because he has been unsuccessfully reurging the same rationale in the courts, in one guise or another, since the 1970's.
Mr. Christensen believes that he has no obligation to file income tax returns, that federal employees have no authority to pursue collection of the tax, and that federal courts have no constitutional grant of jurisdiction relating to such matters. Examples of his arguments in the cases before us are illustrative:
A law requiring individuals to file returns of their income, private financial information, with public employees would be in conflict with both the Fourth and Thirteenth Amendments of the U.S. Constitution.
Reply Brief of Appellant at 6.
Those who would cite the Sixteenth Amendment are destitute of mentality because the power to lay and collect Taxes, as provided in the Sixteenth Amendment, is totally different from the power to require individuals to report their private financial information to government employees.
Defendants were negligent in failing to research the law, which would have revealed that income Tax filing requirements did not apply to Plaintiff....
Complaint, R.Vol. II, Tab I at 3, par. 9.
Defendant Sam violated the liberty provision of the Constitution ... by finding a liability without citing a law making Plaintiff liable for the income Tax, which there is none.
Memorandum in Support of Motion to Vacate Memorandum Opinion, Order and Judgment, R.Vol. II, Tab 26 at 6-7.
The power to require Edward D. Christensen to make income Tax returns is not delegated to the United States by the Constitution, nor is it reasonably to be implied from the power to lay and collect Taxes, an entirely different subject.
Memorandum and Conclusions of Law in Support of Motion to Vacate Sentence, January 9, 1986, R.Vol. I, Tab 12 at 13.
The United States had no standing in court.... This Court [United States District Court for the Western District of Washington] had no jurisdiction.
The United States is not a named party to this action and its sovereignty, which is limited to the seat of government, federal enclaves, possessions and territories, is not relevant to this action.
Objections to Motion to Dismiss and Motion for Summary Judgment, R.Vol. I, Tab 12 at 8.
The injuries complained of in Case No. 10339 did not ocur [sic] on property ceeded [sic] to the U.S. by the State of Utah, therefore the U.S. District Court does not have exclusive jurisdiction over the case.
Objections to Petition for Removal, R.Vol. II, Tab 4 at 2.
Further, this Court must have jurisdiction over the persons. Neither the Plaintiff nor any of the Defendants live on a federal enclave in the State of Utah where the United States has exclusive territorial jurisdiction, therefore this Court lacks jurisdiction over all persons.
The only controversy that federal courts may consider between citizens of the same state is the one "between citizens of the same State claiming lands under Grants of different States", and that does not apply to Plaintiff's case. (See Article III of the Constitution) Therefore Congress cannot confer jurisdiction of federal courts to determine controversies between citizens of the same state, other than the one case above mentioned, according to Hudson and Goodwin supra.
As indicated above, Mr. Christensen had an opportunity to test those or similar arguments on the merits in his criminal case, Tax Court case and collection cases. The problem is that he refuses to accept the finality of the decisions against him in those cases. The history of his litigiousness on the point includes the following.
With respect to his criminal conviction, Mr. Christensen knowingly waived his right to a direct appeal. Transcript of Proceedings in No. CR77-276S, R.Vol. I, Tab 12, at pp. 2, 4. Thereafter, he pursued collateral challenges to that conviction on three separate occasions. By an order entered on October 17, 1978 in Civil No. C78-560L, Christensen's motion under 28 U.S.C. Sec. 2255 to vacate, set aside or correct his sentence was denied. By an order entered on November 13, 1978 in Civil No. 699L, Christensen's second motion under 28 U.S.C. Sec. 2255 for the same relief was denied. A third motion purportedly under Fed.R.Civ.P. 60(b), for the same relief, was filed in 1986 and denied on October 23, 1986. See United States v. Christensen, (W.D.Wash. Oct. 23, 1986) (order to dismiss); R.Vol. I, Tab 12. All of the foregoing docket numbers refer to dockets in the United States District Court for the Western District of Washington.
The Tax Court filed its decision upholding taxes and penalties against Mr. Christensen on November 22, 1982. Christensen appealed to this court which dismissed the appeal for failure to prosecute. Christensen v. Commissioner, No. 83-1227, slip. op. (10th Cir. Aug. 17, 1983). Christensen then petitioned for a writ of certiorari to the United States Supreme Court which denied the petition. 465 U.S. 1037, 104 S.Ct. 1313, 79 L.Ed.2d 710 (1984). Thus, the Tax Court decision became final and unreviewable. Yet, almost four years after the judgment was entered, Christensen filed a motion the Tax Court to vacate the judgment. In his motion he reasserted his original claims. The Tax Court denied the...
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