United States v. Chai ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 26 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA;
INTERNAL REVENUE SERVICE,
Donna Meadors, Revenue Agent,
Petitioners-Appellees, No. 00-5093
(D.C. No. 99-MC-21-K)
v. (N.D. Okla.)
KIM K. CHAI,
Respondent-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Respondent Kim K. Chai appeals three orders of the district court arising
out of summons enforcement proceedings commenced by the Internal Revenue
Service. We conclude that respondent’s appeal is untimely with respect to two of
the orders and is moot with respect to the third. Therefore, we dismiss the appeal.
The IRS issued a summons to respondent in January 1999 seeking various
books and records in connection with its investigation of his tax liability for 1995
and 1996. When respondent failed to comply with the summons, the IRS
instituted this enforcement proceeding pursuant to 26 U.S.C. §§ 7402(b) and
7604. The district court ordered respondent to show cause why the summons
should not be enforced and, after holding a show cause hearing and considering
the briefs of the parties, the court entered an enforcement order on January 4,
2000. The court ordered all but one provision of the summons enforced; the court
held that respondent did not have to comply with that portion of the summons
seeking his patient files. Respondent was ordered to comply with the remainder
of the summons by February 7, 2000.
Respondent did not appeal the district court’s enforcement order. Instead,
he filed two motions on February 7 challenging the district court’s jurisdiction
over the proceedings. The court entered an order on March 3 ruling that, to the
extent the February 7 filings were intended as motions to reconsider or alter or
amend the court’s order of January 4, they were denied. The court directed
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respondent to comply with its January 4 order. Respondent did not appeal this
March 3 order.
Meanwhile, the government moved for an order to show cause why
respondent should not be held in contempt for failing to comply with the court’s
January 4 enforcement order. The court issued an order to show cause on
March 23, and on April 17, the magistrate judge conducted a show cause hearing
at which respondent appeared and presented argument. In a report and
recommendation issued April 18, the magistrate judge found that respondent had
“presented no justifiable reason for his failure to comply with this Court’s prior
orders.” R. Vol. I, Doc. 35 at 3. He found respondent in contempt and
recommended that respondent be given an opportunity to purge the contempt by
complying with the summons on or before May 2. The magistrate judge further
recommended that, if respondent did not purge the contempt by May 2, the court
issue a warrant for his arrest and “he be incarcerated until he is willing to comply
with the IRS’ lawful summons.” Id.Respondent filed timely objections to the magistrate’s report and
recommendation, as well as several other motions challenging the court’s
jurisdiction and the enforcement order. By order entered May 1, the district court
denied respondent’s objections and other motions. The court stated that
respondent “has been ordered to turn over requested documents by May 2, 2000 or
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be found in contempt,” and held that “the deadline of May 2, 2000 stands.” Id. ,
Doc. 45 at 1. On May 2, respondent delivered the requested documents to the
IRS, and on May 3, the IRS filed a notice with the district court that respondent
had purged himself of the contempt. Respondent filed a notice of appeal on
May 9, stating that he was appealing the court’s orders of January 4, March 3, and
April 17.
Respondent’s appeal of the district court’s January 4 enforcement order is
untimely. The enforcement order was a final, appealable order. Church of
Scientology of Cal. v. United States , 506 U.S. 9, 18 n.11 (1992). Because the
federal government is a party to this action, respondent had sixty days from entry
of the January 4 order to appeal that order. See Fed. R. App. P. 4(a)(1)(B). The
order was entered on the docket on January 5, so respondent had until March 7 to
file his notice of appeal. His May 9 notice of appeal was two months late.
Respondent’s February 7 filings, which the court construed as post-judgment
motions attacking the enforcement order, did not toll the time for appealing the
enforcement order because they were not filed within ten days of the enforcement
order’s entry. See Fed. R. App. P. 4(a)(4)(A)(iv), (vi). Further, respondent’s
appeal of the court’s order denying those post-judgment motions is not timely,
because it was not filed within sixty days of entry of the order denying those
motions. Respondent repeatedly argues that he should not be held to the same
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standards as others because he is proceeding pro se. While respondent’s pro se
status entitles him to have his pleadings construed more liberally than those of an
attorney, it does not relieve him of the duty to “comply with the fundamental
requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v.
San Juan County , 32 F.3d 452, 455 (10th Cir. 1994).
Respondent’s May 9 notice of appeal also purports to appeal an April 17
order. The court did not enter an order on April 17, however; that was the date of
the contempt hearing. The IRS suggests that respondent’s reference to an April
17 order was an attempt to appeal the district court’s order of May 1 concerning
the contempt proceedings of April 17. To the extent that the IRS is correct, 1
the
notice of appeal may have been timely, 2
but the contempt order is moot because
respondent purged himself of the contempt.
“In the context of purely coercive civil contempt, a contemnor’s
compliance with the district court’s underlying order moots the contemnor’s
ability to challenge his contempt adjudication.” Chairs v. Burgess , 143 F.3d
1
Respondent states in his reply brief that he is not attempting to appeal the
contempt order, but rather is appealing the court’s orders of January 4, March 3,
and April 28. There was no order entered on April 28, however, and all the
orders entered in April related to the contempt proceedings.
2
The IRS argues that the notice of appeal is not effective as to the court’s
May 1 order because that order was not a final order. Because we conclude that
the contempt proceedings are moot, we need not decide whether the court’s May 1
order was a final, appealable order.
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1432, 1435 n.3 (11th Cir. 1998) (quotation omitted); accord Philadelphia Police
& Fire Ass'n for Handicapped Children, Inc. v. City of Philadelphia , 874 F.2d
156, 162 (3d Cir. 1989); Cordero v. De Jesus-Mendez , 867 F.2d 1, 21 (1st Cir.
1989) (collecting cases); Szabo v. U.S. Marine Corp. , 819 F.2d 714, 716 (7th Cir.
1987); Hunt v. Hunt (In re Hunt) , 754 F.2d 1290, 1293 (5th Cir. 1985).
Because respondent’s notice of appeal is untimely as to the court’s
enforcement order and its order denying his post-judgment motions, and because
the court’s contempt order was mooted by respondent’s compliance, we have no
jurisdiction to review the matters raised by respondent on appeal. Accordingly,
the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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