Judges: Per Curiam
Filed: May 13, 2016
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 13, 2016* Decided May 13, 2016 Before MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3002 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 15-CV-100-JPS RICHARD J. CLARK, J.P. Sta
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 13, 2016* Decided May 13, 2016 Before MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3002 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 15-CV-100-JPS RICHARD J. CLARK, J.P. Stad..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 13, 2016*
Decided May 13, 2016
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐3002
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 15‐CV‐100‐JPS
RICHARD J. CLARK, J.P. Stadtmueller,
Defendant‐Appellant. Judge.
O R D E R
The government sued Richard Clark in federal court seeking to collect more than
$180,000 in unpaid income taxes and penalties. See 26 U.S.C. §§ 7401, 7403; 28 U.S.C.
§§ 1340, 1345. The district court entered summary judgment for the government, and
Clark now asks us to overturn that decision. We conclude, however, that Clark’s notice
of appeal was untimely, and we thus dismiss the appeal for lack of jurisdiction.
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 15‐3002 Page 2
In the district court Clark filed several motions arguing that the government’s
suit should be dismissed on the grounds that the federal income tax is unconstitutional
and that district courts lack jurisdiction to enforce tax laws. The district court denied
these motions and warned Clark that he could be sanctioned if he continued to advance
frivolous “tax protester” arguments that have been rejected repeatedly. Undeterred,
Clark petitioned for leave to file an interlocutory appeal. See 28 U.S.C. § 1292.
Meanwhile, the government moved for summary judgment, and, rather than dispute
the existence or amount of his tax liabilities, Clark responded with more of the same
frivolous contentions. The judge granted the government’s motion on July 13, 2015, and
final judgment was entered that day. The next day we denied Clark’s petition for leave
to file an interlocutory appeal. See In re Clark, No. 15‐8014 (7th Cir. July 14, 2015).
Clark’s deadline to file a notice of appeal was Friday, September 11 (60 days after
entry of final judgment), see FED. R. APP. P. 4(a)(1)(B)(i), but he waited until Monday,
September 14. Because that was too late, we directed Clark to show cause why this
appeal should not be dismissed for lack of jurisdiction. Clark instead asked the district
court to extend the deadline for filing a notice of appeal. See FED. R. APP. P. 4(a)(5)(A).
Car trouble had kept him from reaching the courthouse on September 11, Clark
explained, and he hadn’t acted sooner because until then he couldn’t afford to pay the
appellate fees.
The district court denied Clark’s motion with the explanation that he had not
demonstrated good cause or excusable neglect for his late filing. See FED. R. APP. P.
4(a)(5)(A)(ii). The court assumed that Clark had acted in good faith and acknowledged
that the three‐day delay in filing had been “extremely short” and unlikely to have
caused more than “minimal” prejudice to the government. But even so, the court
reasoned, Clark had not explained why he could not get to the courthouse some other
way or why—if he indeed lacked funds to pay the required fees—he did not seek leave
to proceed in forma pauperis before the filing deadline.
The district court’s adverse ruling is our starting point, since we lack jurisdiction
unless the district court abused its discretion in denying Clark’s motion for an extension
of time to file his notice of appeal. See Satkar Hospitality, Inc. v. Fox Television Holdings,
767 F.3d 701, 706–07 (7th Cir. 2014); McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008).
In his appellate submissions Clark for the first time explains his contention that it
would not have been possible for him to get to the courthouse by other means after his
car had broken down. He says, for example, that he did not have friends or family
members available to give him a ride and that it would have been too expensive to take
No. 15‐3002 Page 3
a taxi from his rural home into Milwaukee. (The government incorrectly asserts that we
cannot even review the ruling on Clark’s motion for an extension of time because he did
not file a second notice of appeal after that motion was denied. See United States v.
Kimberlin, 898 F.2d 1262, 1264 (7th Cir. 1990) (explaining that a litigant need not file a
second notice of appeal only to argue the soundness of a first notice)).
Clark never offered this explanation to the district court, so it is not properly
before us. See Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 843 (7th Cir. 2014)
(recognizing that “[t]he appellate stage of the litigation process is not the place to
introduce new evidentiary materials”); Berwick Grain Co. v. Ill. Dep’t of Agric., 116 F.3d
231, 234 (7th Cir. 1997) (same). Regardless, as the district court observed, Clark had no
excuse for waiting until the eleventh hour to file a notice of appeal; if he truly lacked the
funds, he could have applied to proceed in forma pauperis. Because the district court
acted within its discretion in denying Clark’s motion for an extension of time, his notice
of appeal is untimely and we must dismiss this case for lack of jurisdiction. See Bowles v.
Russell, 551 U.S. 205, 214 (2007) (recognizing that “the timely filing of a notice of appeal
in a civil case is a jurisdictional requirement”); Satkar Hospitality, 767 F.3d at 706 (same).
A final matter remains. The government has moved under Federal Rule of
Appellate Procedure 38 for an award of sanctions in the amount of $4,000—the
presumptive sanction for filing a frivolous appeal in a tax case. See Szopa v. United States,
460 F.3d 884, 887 (7th Cir. 2006). (We note that our lack of appellate jurisdiction does not
preclude us from imposing sanctions under Rule 38. See Wojan v. Gen. Motors Corp., 851
F.2d 969, 972–73 (7th Cir. 1988); Holloway v. United States, 789 F.2d 1372, 1374 (9th Cir.
1986)). Clark’s principal argument—that the federal income tax is unconstitutional—has
been rejected countless times during the last century. See, e.g., Brushaber v. Union Pac.
R.R. Co., 240 U.S. 1, 17–18, 24 (1916); United States v. Benson, 561 F.3d 718, 723 (7th Cir.
2009); United States v. Cooper, 170 F.3d 691, 691 (7th Cir. 1999); Coleman v. C.I.R., 791 F.2d
68, 70 (7th Cir. 1986). Clark was aware of these precedents because the district court
advised him of their existence in denying his various motions, and we did the same in
denying his request for leave to file an interlocutory appeal. Thus the standard sanction
is warranted.
Clark’s appeal is DISMISSED for lack of jurisdiction, and the government’s
motion for sanctions is GRANTED. Within fourteen days of the date of this order,
Clark must tender a check to the clerk of this court for the full amount of the $4,000
sanction. If Clark fails to pay the sanction by the due date, we will enter an order
directing the clerks of all federal courts in this circuit to return unfiled any papers
No. 15‐3002 Page 4
submitted either directly or indirectly by or on behalf of Clark unless and until he pays
the sanction in full. See Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186–87 (7th Cir. 1995).