Kyler v. Everson, 05-5185.

• Citation: 442 F.3d 1251
• Decision Date: 03 April 2006
• Docket Number: No. 05-5185.,05-5185.
• Parties: Delbert KYLER, Plaintiff-Appellant, v. Mark EVERSON, Commissioner of Internal Revenue, in his personal capacity, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

442 F.3d 1251

Delbert KYLER, Plaintiff-Appellant, v. Mark EVERSON, Commissioner of Internal Revenue, in his personal capacity, Defendant-Appellant.

No. 05-5185.

United States Court of Appeals, Tenth Circuit.

April 3, 2006.

Submitted on the briefs:^*

Delbert Kyler, pro se.

Eileen J. O'Connor, Assistant Attorney General, Andrea R. Tebbets, Attorney, and Patricia M. Bowman, Attorney, Tax Division, Department of Justice, Washington, D.C.; and David E. O'Meilia, United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma, on the brief for Appellees.

Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.

TACHA, Chief Circuit Judge.

I. BACKGROUND

Delbert Kyler, appearing pro se, originally filed this claim for slander of title in Oklahoma state court against the Commissioner of Internal Revenue, Mark Everson, after the Internal Revenue Service filed two federal tax liens against his property. Mr. Kyler contended that the Commissioner lacked authority to file such liens because no court order gave him permission to do so. Mr. Kyler asked for $4.5 million in damages for slander of title, inconvenience, aggravation, and malicious slander. The Government removed the case to the Northern District of Oklahoma and sought dismissal of the complaint for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Mr. Kyler filed a motion to remand and numerous motions to strike the Government's responses. The District Court denied all Mr. Kyler's motions and dismissed the complaint. Mr. Kyler timely appeals. Taking jurisdiction under 28 U.S.C. § 1291, we AFFIRM. In addition, because this appeal is legally frivolous, we GRANT the Government's motion for $8,000 in costs under 28 U.S.C. § 1912 and Fed. R.App. P. 38.

II. DISCUSSION

Reviewing de novo, see Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005), we begin with the substance of Mr. Kyler's legal contentions. Contrary to Mr. Kyler's assertion, no federal authority stands for the proposition that for a federal tax lien to be valid, there must be a federal court order signed by a federal judge. Rather, 26 U.S.C. §§ 6321 and 6322 establish that a lien automatically arises upon assessment of a tax and continues until the taxpayer's liability is satisfied or becomes unenforceable. Moreover, to the extent this suit for damages is against the Commissioner in his official capacity, it is barred by sovereign immunity, see Hawaii v. Gordon, 373 U.S. 57, 58 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (sovereign immunity extends to agents and officers of the United States when the acts complained of were undertaken in their official capacities), and to the extent the suit is against the Commissioner in his personal capacity, he is entitled to qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (absent violation of clearly established law, government officials performing discretionary functions are shielded from civil liability). Therefore, the District Court properly dismissed this suit.

We next address the substance and spirit of Mr. Kyler's multiple filings, both at the District Court and on appeal. At every stage of the proceedings, Mr. Kyler has accused government officials and court officers of criminal misconduct. Mr. Kyler stated that the Commissioner "extorts money and property" and files "fraudulent instrument[s] designed to scare the living daylights out of anyone who would dare to stand up to the bully-thief [Commissioner]." He further contended that the Commissioner should "be punished for his felony crimes but the typical Oklahoma County prosecutor would cry and wet [his] pants at the thought of going up against the ultimate thug—[the Commissioner—]who can, albeit illicitly, exploit the powers of the United States for his criminal thuggery." Mr. Kyler claimed that the United States Attorney was "obviously unschooled and untrained in the legal arts ... [and] expects this court to bend over backwards and kiss his ... allegedly royal ass." Mr. Kyler continued this diatribe on appeal, stating in his opening brief that the Government and the District Court judge are "criminals" and declaring his presumption "that this appellate panel will `save their bacon' by further co-joining in the high-level fraud." His brief goes on to imply that the District Court judge's ruling was drug-induced, arguing that the dismissal of his case "underscores the compelling need for mandatory random drug testing of federal officers." Further, in addition to the $4.5 million in compensatory damages Mr. Kyler seeks in his complaint, he also calls for the termination, conviction, and imprisonment of the...