author: JOHN W. OLIVER, Senior District Judge.

text:
    Walter L. HARVEY, Petitioner, v. UNITED STATES of America, Respondent.
    No. 85-0621-CV-W-1.
    United States District Court, W.D. Missouri, W.D.
    Aug. 9, 1985.
    Opinion After Response Aug. 29, 1985.
    Walter L. Harvey, pro se.
    William L. Webster, Atty. Gen., George Cox, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
   MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

On June 7, 1985 this Court entered an order directing the Department of Corrections of Missouri to state on or before July 1, 1985 the circumstances under which it obtained custody of the petitioner and to attach copies of any documents pertaining to the designation of the petitioner’s place of confinement. That order pointed out that petitioner’s application for habeas corpus alleged that he had been “illegally transferred out of federal custody and into the custody of the Missouri Department of Corrections” and that the Missouri Department of Corrections was therefore “without jurisdiction and authority to retain custody” of the petitioner. In order to be of assistance, this Court directed attention to 18 U.S.C. § 4082 which authorizes the Attorney General of the United States to designate the place of confinement where a sentence imposed by a federal court shall be served.

On June 28, 1985 an Assistant Attorney General of the State of Missouri, as attorney for the Missouri Department of Corrections and Human Resources, filed a response to this Court’s June 7, 1985 Order which simply stated that on June 25, 1985, the Supreme Court of Missouri reversed a death sentence imposed after a jury verdict of guilty rendered in the Circuit Court of Boone County, Missouri. The Assistant Attorney General added that he had been in contact with the St. Louis County Prosecuting Attorney who had advised him that the petitioner would soon be returned to the custody of St. Louis County for re-trial. For reasons neither stated nor apparent, the Assistant Attorney General stated that the Supreme Court of Missouri’s reversal of petitioner’s State court conviction somehow rendered this case moot.

On July 3,1985 petitioner filed a traverse to the response filed by the Assistant Attorney General which accurately pointed out that the action of the Supreme Court of Missouri' in connection with petitioner’s State court conviction had no effect on the question presented by petitioner’s application for federal habeas corpus. Petitioner again alleged that he was not being held in State custody in compliance with 18 U.S.C. § 4082. Petitioner’s traverse prayed that he be returned forthwith to the custody of the Attorney General of the United States. Petitioner also' filed a request for a protective order which would prohibit petitioner's placement in one of Missouri’s County jails.

On July 9, 1985 this Court entered its memorandum which expressly found that the June 28, 1985 response filed by the Assistant Attorney General did not comply with this Court’s June 7, 1985 Order and entered a second order directing compliance with its initial order on or before July 19, 1985.

Thereafter, on July 19, 1985 the Assistant Attorney General filed a further response which stated in substance that the Records Office at the Missouri State Penitentiary has informed counsel that no documents existed in petitioner’s file that might relate to how the Missouri Department of Corrections may have obtained custody of the petitioner pursuant to any federal statute. That response further stated that the “United States Attorney would appear to be the appropriate authority to represent the federal prison authorities in this area.” How or why the federal prison authorities were to be considered as parties in a habeas corpus proceeding that presented the question of whether petitioner was being legally held by the State was not explained. The most recent filed response also advised this Court that the petitioner had most recently been removed from the Missouri State Penitentiary and is presently being held in the St. Louis County Jail, Clayton, Missouri, as a pretrial detainee. The Assistant Attorney General then stated that his office does not represent St. Louis County, is not involved in the re-trial of the petitioner, and that the appropriate party in this instance would be the St. Louis County Prosecuting Attorney. The response did not attempt to state why or how the St. Louis Prosecuting Attorney could be considered as an “appropriate party” in this habeas corpus proceeding.

Because of the Assistant Attorney General’s failure to comply with two orders of this Court, his suggestion that this Court make inquiry of persons other than the persons alleged to have custody of the person detained, and, most important, the advice that petitioner had been transferred from the Missouri Penitentiary at Jefferson City to the St. Louis County Jail, the Court requested the Chief Probation Officer of this Court to obtain accurate information in regard to the manner in which the Missouri Department of Corrections obtained custody of the petitioner as alleged in petitioner’s application for federal habeas corpus was filed.

A single telephone call by the Chief Probation Officer led to the production of the following documents: Warden O’Brien’s August 9, 1984 letter to Superintendent Wyrick of the Missouri Department of Corrections at Jefferson City, attached hereto as Exhibit A; Warden Armontrout’s August 22, 1984 letter to Warden O’Brien, attached as Exhibit B; a copy of the Section 4082 order transferring petitioner from the United States Penitentiary at Leavenworth, Kansas to the United States Penitentiary at Marion, Illinois, attached hereto as Exhibit C; a copy of the Section 4082 transfer order from the United States Penitentiary at Marion, Illinois to the Missouri Department of Corrections for the concurrent service and execution of the State court sentence imposed by the Circuit Court of Boone County, Missouri before its recent reversal by the Supreme Court of Missouri, attached as Exhibit D; and a copy of a memorandum forwarded to the federal authority by H.F. Lauf, Records Officer of the Missouri Department of Corrections, advising that the petitioner had been received by the Missouri State Penitentiary on March 19, 1985 attached as Exhibit E.

The Court has been advised that the first knowledge that the Federal Bureau of Prisons had of the transfer of the petitioner from the Missouri penitentiary at Jefferson City to the St. Louis County Jail was obtained as a result of the inquiry made by the Chief Probation Officer of this Court. We attach hereto as Exhibit F a copy of a Section 4082 order designating the St. Louis County Jail for the service of Mr. Harvey’s federal sentence. Needless to say, the Federal Bureau of Prisons was unhappy to learn, solely as a result of this Court’s independent inquiry, that petitioner’s State court conviction has been reversed by the Supreme Court of Missouri and that the petitioner had been moved to the St. Louis County Jail for re-trial without notice to the federal authorities. Warden O’Brien’s August 9, 1984 letter (Exhibit A) made clear that “It is essential that we be notified concerning any change in his [petitioner’s] status.”

The independent research required by the inadequate responses made by the Assistant Attorney General of the State of Missouri required this Court to also ascertain that petitioner was convicted in the United States District Court for the Eastern District of Missouri of numerous federal crimes for which he was given an aggregate term of 120 years imprisonment. The Judgment and Commitment Order entered by the United States District Court for the Eastern District of Missouri on June 6, 1983 was affirmed by the Court of Appeals for the Eighth Circuit in United States v. Harvey, 756 F.2d 636 (8th Cir.1985).

Section 4082 of Title 18 of the United States Code in its pertinent part provides that:

(a) A person convicted of an offense against the United States shall be committed, for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.
(b) The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another. (Emphasis ours).

Genovese v. Ciccone, 331 F.Supp. 1117, 1118 (W.D.Mo.1971), appropriately stated that “under the provisions of Section 4082, Title 18, United States Code, the place of a federal prisoner’s confinement is vested in the discretion of the Attorney General or his authorized delegate.” That case added that “[i]n the absence of exceptional circumstances or the denial of a federal constitutional or statutory right, the exercise of that discretion will not be reviewed in the Courts.”

As a result of this Court’s independent research, it is obvious that the St. Louis County Jail has been appropriately designated pursuant to the authority conferred by Section 4082 as the place of confinement where petitioner’s federal sentence shall be served. An order will therefore be entered denying the petition for habeas corpus.

A further order, however, will be entered requiring the Assistant Attorney General of the State of Missouri to advise this Court as to whether Warden O’Brien’s August 9, 1984 letter to Superintendent Wyrick, attached as Exhibit A, and whether Warden Armontrout’s August 22, 1984 response to Warden O’Brien’s letter, attached hereto as Exhibit B, were in petitioner’s file as maintained by the Missouri Department of Corrections. That response shall further state what effort was made, if any, to obtain the information from the Federal Bureau of Prisons that this Court was required to obtain in regard to the various Section 4082 transfer orders and designations attached hereto as Exhibits C, D and F.

This Court may enter a further order after considering the response to Order (2) below.

For the reasons stated, it is

ORDERED (1) that petitioner’s May 30, 1985 application for federal habeas corpus should be and the same is hereby denied. It is further

ORDERED (2) that on or before August 16, 1985 the Assistant Attorney General of the State of Missouri who represented the Missouri Department of Corrections in this case shall file a response to this Order in which he shall state whether Warden O’Brien’s August 9, 1984 letter to Superintendent Wyrick, attached as Exhibit A, and whether Warden Armontrout’s August 22, 1984 response to Warden O’Brien’s letter, attached hereto as Exhibit B, were in the petitioner’s file as maintained by the Missouri Department of Corrections. That response shall further state what effort was made, if any, to obtain the information from the Federal Bureau of Prisons that this Court was required to obtain in regard to the various Section 4082 transfer orders and designations attached hereto as Exhibits C, D and F.

OPINION AFTER RESPONSE

I.

On August 16, 1985 the Attorney General’s Office filed a response to Order (2) entered by this Court on August 9, 1985. That response was signed on behalf of the Attorney General of Missouri by the Chief Counsel of the Criminal Division of that office and by the Assistant Attorney General who filed the various responses to this Court’s orders to show cause entered in the above case. The August 16, 1985 response stated that the “undersigned attorneys sincerely regret the evident conflict between what this Court desired this office to do, and what this office perceives to be its duty in this case.”

This Court is concerned that the attorneys in the Attorney General’s Office perceived that an “evident conflict,” as distinguished from an “apparent conflict,” existed between this Court and the Attorney General’s Office in regard to how that office should have discharged its duty to this Court in regard to the responses filed to this Court’s orders to show cause entered in this ease.

The purpose of this Court’s August 9, 1985 Order (2) was to obtain accurate information in regard to what effort, if any, was made by the Attorney General’s Office to obtain accurate information concerning the various Section 4082 designations under which the Missouri Department of Corrections was maintaining custody of the pro se petitioner. While we shall accept the expression of regret stated by the Attorney General’s Office in its August 16, 1985 response to our Order (2) entered August 8, 1985, we believe that the procedures under which future habeas corpus cases are to be processed will be improved if we state in some detail the reasons why our August 9, 1985 memorandum in support of Order (2) described the various responses filed by the Attorney General’s Office to this Court’s orders to show cause as “inadequate.”

II.

As a matter of background, the Court en banc opinion published by this Court in White v. Swenson, 261 F.Supp. 42 (W.D.Mo. en banc 1966), shows that difficulties were being encountered approximately twenty years ago in regard to the manner in which federal pro se applications for habeas corpus were being processed. Those difficulties, and the position then being maintained by the Attorney General’s Office in regard to how State prisoners were to exhaust their available State court postconviction remedies, prompted this Court to convene a conference with the then Attorney General of Missouri and six Assistant Attorney Generals who were then serving that office. A copy of the memorandum of that conference was attached as Appendix A to the published report of White v. Swenson, 261 F.Supp. at 62-64.

That conference was convened by this Court in 1966 in a spirit of cooperation designed to improve the procedures under which the anticipated volume of federal pro se applications for habeas corpus that would be filed pursuant to the principles stated in the 1963 habeas trilogy of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), would be processed.

This Court stated in White v. Swenson that:

This Court will continue to attempt to cooperate in every possible legal way with the trial and appellate courts of Missouri and with counsel representing the State of Missouri to the end that procedures be designed that will render the implementation of the trilogy least burdensome to all courts on whom the responsibility rests. (Emphasis ours).

261 F.Supp. at 56.

The difficulties that prompted that conference were substantially eliminated by changes of view on the part of the Attorney General’s Office in regard to how the problems presented in processing pro se habeas corpus applications should be considered. Further procedural improvements were implemented during the terms of Attorney General Danforth, all of which were continued under Attorney General Ashcroft. This Court has been gratified to be able to express its appreciation on frequent occasions for the cooperation and assistance that has been consistently extended over the years by various staff members of the Attorney General’s Office in the many habeas corpus cases which have pended in this Court over the years.

Experience over those years has established that changes in the personnel of the Attorney General’s Office has sometimes produced apparent, as distinguished from evident, conflict between this Court and members of the staff of the Attorney General’s Office in particular isolated cases. The manner in which the Attorney General’s Office responded to this Court’s orders to show cause entered in this case is an illustration of such an isolated case.

All apparent conflicts between this Court and the Attorney General’s Office, however, have been resolved in the past by a review of the duties imposed on this Court and on counsel representing the State of Missouri in regard to the manner in which pro se habeas corpus applications must be processed. Such reviews have placed primary focus on the improvement of the procedures under which habeas corpus cases may be fairly and justly determined on their merits with the least expenditure of time on the part of all persons involved in handling the inevitably large volume of cases that are and will be filed by persons being held in State custody.

III.

A current review of how habeas corpus petitions may be efficiently processed with the least expenditure of time on the part of the Attorney General’s Office and on the part of this Court must be considered in the context of the views most recently expressed by the Attorney General’s Office in this particular case. For there can be no question that the manner in which this case was processed required the expenditure of a great deal of unnecessary time occasioned by the manner this Court was required to obtain, without the assistance of counsel, accurate information in regard to the Section 4082 designations under which the Missouri Department of Corrections obtained custody of the petitioner.

While the August 16, 1985 response filed by the Attorney General’s Office contained the expression of regret above stated, that response attempts to excuse and justify the minimal investigation conducted by that office in regard to the responses filed to this Court’s orders to show cause entered in this case. The August 16, 1985 response is based on the notion that only minimal investigation was required on the part of the Attorney General’s Office for the reasons that the United States was erroneously named by the pro se petitioner as the party respondent in his habeas corpus application; because initial service was made on the United States Attorney; and because the pro se petitioner did not challenge the validity of his Missouri conviction and sentence.

The response suggests that under those circumstances, the Attorney General’s Office was under duty to do no more than have the petitioner’s Missouri Department of Corrections’ classification file searched and thereafter to report to this Court that nothing had been found in that file as that file was maintained by the Missouri Department of Corrections.

This Court's initial show cause order entered June 7, 1985 expressly stated, in order to be of assistance to the Attorney General’s Office that “[i]t is appropriate that the Department of Corrections of Missouri be ordered to state the circumstances under which it obtained custody of petitioner and attach copies of the documents under which the Attorney General of the United States or his delegate acted pursuant to 18 U.S.C. § 4082.”

The August 16, 1985 response to Order (2) does not so much as mention Section 4082. Rather, the response of the Attorney General’s Office contends that it could have made some sort of an attempt “to challenge this Court’s jurisdiction to order an investigation and response by an entity not named as a party in the cause and with no legal interest in the case.” Such a suggestion could only be predicated on the notion that a pro se habeas corpus petition must be strictly read and that a pro se petitioner must be held to comply with the niceties of the rules of procedure that are applicable in the litigation of ordinary lawsuits.

Such a narrow view of the Great Writ is untenable. Any attempt to maintain such a view in this or in any other habeas corpus case can do no more than delay the determination of what otherwise would be the only deposition of the merits of an uncomplicated pro se habeas corpus application.

IV.

Long before the Supreme Court of the United States decided its 1963 habeas corpus trilogy, it recognized in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), that the “historic and great usage of the writ, regardless of its particular form, is to produce the body of a person before a court for whatever purpose might be essential to the proper disposition of a cause” and that “the principle has developed that the writ of habeas corpus should be left sufficiently elastic so that a court may, in the exercise of its proper jurisdiction, deal effectively with any and all forms of illegal restraint. The rigidity which is appropriate to ordinary jurisdictional doctrines has not been applied to this writ.” Id. at 283, 68 S.Ct. at 1059.

Price v. Johnston appropriately noted that the “primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned,” id. at 291, 68 S.Ct. at 1063, and that:

Prisoners are often unlearned in the law and unfamiliar with the complicated rules of pleading. Since they act so often as their own counsel in habeas corpus proceedings, we cannot impose on them the same high standards of the legal art which we might place on the members of the legal profession.

Id. at 292, 68 S.Ct. at 1063. Price v. Johnston further stated that the principles above quoted were based on “the importance of the writ and the necessity that it not lose its effectiveness in a procedural morass, .... ” Id. at 269, 68 S.Ct. at 1052.

It is therefore clear that the Court did no more than state and apply long established principles in Sanders v. United States, supra, when it stated that an “applicant for such [collateral] relief ought not to be held to the niceties of lawyers’ pleadings or be cursorily dismissed because his claim seems unlikely to prove meritorious.” Sanders expressly held that a federal district judge “is free to adopt any appropriate means for inquiry into the legality of the prisoner’s detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief.” 373 U.S. at 22, 83 S.Ct. at 1080.

Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), noted that it was Blackstone who described habeas corpus as “the great and efficacious writ” and that the pre-eminent role of the Great Writ was “recognized by the admonition in the Constitution that: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended____’” That case further held that:

The scope and flexibility of the writ—its capacity to reach all manner of illegal detention—its ability to cut through barriers of form and procedural mazes— have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essental to insure that miscarriages of justice within its reach are surfaced and corrected.

Id. at 291, 89 S.Ct. at 1086.

Harris v. Nelson appropriately recognized that the Court was “aware that confinement sometimes induces fantasy which has its basis in the paranoia of prison rather than in fact.” Id. at 300, 89 S.Ct. at 1091. The Court concluded, however, that “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” (Emphasis ours). Id. at 300, 89 S.Ct. at 1091.

Braden v. 30th Judicial Circuit of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), noted that the “writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody” and that “[sjo long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim, ____” (Emphasis ours). Id. at 494, 495, 93 S.Ct. at 1129.

It was, of course, obvious from the outset of this case that the Missouri Department of Corrections was, in fact, the petitioner’s custodian at the time he filed his pro se habeas corpus application. It was also obvious, but quite unimportant, that the pro se petition failed, as have many petitions in the past and as will many petitions in the future, to properly name the Missouri Department of Corrections as a respondent in this case. It should have been further obvious that this Court could and would have entered a formal order substituting the Missouri Department of Corrections as the proper party respondent had there been any real necessity for so doing.

This Court did not deem it necessary to do so in reliance upon the recognition which the incumbent Attorney General’s Office and past Attorney General’s Offices have given to the principles above stated in regard to how a pro se application must be read. Appropriate recognition of those principles would have advised the Attorney General’s Office in this case that any motion that it might have filed for the purpose of challenging this Court’s habeas corpus jurisdiction based on the notion that the Missouri Department of Corrections was not “named as a party in the cause” and on the notion that the Missouri Department of Corrections had “no legal interest in the case,” as stated in the August 16, 1985 response filed by the Attorney General’s Office, would have been summarily denied and that a formal order of substitution of the party respondent would have been entered as a matter of course. For there is no question about the fact that petitioner’s actual custodian could, as stated in Bra-den, “be reached by service of process” and there can be no question that this Court is under duty, as stated in Harris v. Nelson “to provide the necessary facilities and procedures for an adequate inquiry.”

As a practical matter, the formal substitution of the Missouri Department of Corrections as the properly named respondent in this case would not have in any way advanced the determination of the merits of the pending pro se habeas corpus application. The narrow view taken by the Attorney General’s Office in regard to the absence of any duty on its part to make adequate inquiry in assistance to this Court in regard to whether the paperwork required by Section 4082 had been accomplished necessitated the expenditure of a great deal of unnecessary and unproductive time on the part of everyone concerned with this case.

V.

We express the hope that some long term benefit may be realized from the time expended in what should have been an uncomplicated case. For this case illustrates how appropriate inquiry and the filing of an adequate response to an initial order to show cause by the Attorney General’s Office most frequently enables this Court to dispose of the merits of a pro se habeas corpus application with a minimum amount of time expended by either the Attorney General’s Office or by this Court.

As we stated at the outset, we accept the expression of regret stated by the Attorney General’s Office. We are fully satisfied that such expression was made in good faith. We are further satisfied that the experience gained by this case may result in this Court being able to publicly commend the present Attorney General’s Office on its discharge of duty to assist this Court in future cases as it has been able to do in its published opinions in many habeas corpus cases in the past.

We find and conclude that no further orders need be entered in this case.

      . We are also concerned that the Attorney General’s Office read the memorandum filed in support of our August 9, 1985 Order (2) as "censorious" and one which carried a "highly critical tone." It was neither “unjust" nor "unwarranted,” as suggested in the August 16, 1985 response, for this Court to have described the responses to its orders to show cause as "inadequate” in its August 9, 1985 memorandum. For the files and records in this case establish that the information in regard to the Section 4082 designations called for by those show cause orders was not furnished by the responses filed by the Attorney General's Office. The responses filed were therefore accurately described as "inadequate” because it was necessary for this Court to obtain the information in regard to the Section 4082 designations without the assistance of counsel.

      . In a paper delivered before the Ninth Circuit Judicial Conference in July 1968, entitled Post-conviction Applications Viewed by a Federal Judge—Revisited, 45 F.R.D. 199, we made reference to this Court’s 1966 conference with the Attorney General of Missouri and his staff and stated that ”[s]econdary benefits flow from conferences properly conducted. The cooperation this Court now receives from the Attorney General’s office is exemplary. That resulted directly from the conference described and corrected a situation that was far from satisfactory for anyone. Our Court deeply appreciates and publicly acknowledges our gratitude to the members of the Attorney General’s staff with whom we are now able to work with mutual understanding.” Id. at 219-20.

      . For a recent example of such an expression, see Smith v. Wyrick, 558 F.Supp. 600, 603 (W.D. Mo.1983), in which Assistant Attorney General Van Heest was commended both by this Court and by appointed counsel for the petitioner for the manner in which she assisted this Court in a particularly complicated habeas corpus case.

      . Experience in processing almost countless pro se petitions for habeas corpus over the years, filed by both State and federal prisoners, establishes that judicial notice may be taken of the fact that important factual data concerning the legality of a particular petitioner’s custody frequently is not to be found in the classification files maintained by either the Missouri Department of Corrections or by the United States Bureau of Prisons. This case is a good example. For the August 16, 1985 response filed in this case does not state that the exchange of letters between the wardens of the State and federal penitentiaries attached to our August 9, 1985 memorandum as Exhibits A and B were never written or that copies of those letters were not in some file other than petitioner’s classification file that was maintained by the Missouri Department of Corrections. The August 16, 1985 response simply reiterated that those letters "were not then and are not now to be found in the classification file of petitioner” (emphasis ours).
      The fact that the letters were not in petitioner’s classification file should have simply established that the Attorney General’s Office needed to make further inquiry and investigation to find out where those letters had, in fact, been filed. And that additional inquiry and investigation would not have required the expenditure of much time, as was established by the manner in which the Court was able to obtain copies of the letters without the assistance of the Attorney General's Office.

      . See also Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), which held that the transfer of custody from the warden of a State penitentiary to a State Board of Parole did not deprive the district court of habeas corpus . jurisdiction. That case held that it "is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.” Id. at 243, 83 S.Ct. at 377.

      . John Fox Arnold devoted the President's Page of the current issue of Journal of the Missouri Bar (July-August 1985, p. 281) to the subject of "Professionalism: Duties in Balance.” President Arnold called for a return to the professionalism of an early day and made reference to what David Dudley Field said long ago in regard to the professional duties of a lawyer. Arnold noted that "David Dudley Field said in 1855 that a lawyer’s first duty is 'undoubtedly to his own client, but that is not his only one; there is also duty to the court, that it shall be assisted by the advocate; ____
      We agree with President Arnold’s implicit suggestion that the orderly administration of justice requires that present day lawyers must recognize and discharge their duty to assist the court in all cases where assistance is necessary.


source: Caselaw Access Project

author: KARLTON, Chief Judge.

license: Public Domain

text:
    Steven A. FULLER and Karen M. Fuller, Plaintiffs, v. UNITED STATES of America, Defendant. Douglas W. SAMSKI, Plaintiff, v. UNITED STATES of America, Defendant. Thomas A. JOLLY, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. Nos. S-83-1148, S-83-1223 and S-84-373.
    United States District Court, E.D. California.
    Aug. 12, 1985.

      Steven & Karen Fuller, in pro per. Douglas W. Samski, in pro per.
    Thomas A. Jolly, in pro per.
    Robert Kwan, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., Yoshinori H.T. Himel, Asst. U.S. Atty., Sacramento, Cal., for U.S.
   ORDER

KARLTON, Chief Judge.

Plaintiffs in the three above-captioned cases are individuals whom the Internal Revenue Service (“IRS”) has fined $500 for filing “frivolous” income tax returns for the 1982 taxable year. See 26 U.S.C. (“I.R. C.”) § 6702(a). In timely compliance with the statutory requirements, plaintiffs paid 15% of the penalty ($75), and filed claims for refund with the IRS. See I.R.C. §§ 6703(c)(1), 7422(a). The IRS denied the claims of each plaintiff. Plaintiffs then timely filed these actions seeking a determination of their liability for the penalties. See I.R.C. §§ 7422(a), (f)(1), and 6703(c)(2).

The United States sought dismissal, or in the alternative, summary judgment, in Fuller and Samski. The motions were denied on the basis that'the penalty statute did not apply to these plaintiffs and therefore the plaintiffs could prove at trial that they are entitled to the refund relief they seek. Order of April 9, 1985. On its own motion, the court invited the parties to brief whether the plaintiffs in Fuller, Sam-ski, and Jolly should be granted summary judgment, on the basis that the penalty statute does not apply to them. That motion is disposed of in this order.

I

STANDARDS

The plaintiffs are entitled to summary judgment on their refund claim if there is no genuine dispute as to any material fact and if, upon the undisputed facts, plaintiffs are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 468, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). Since, as to the issue tendered, there are no material facts in dispute in these cases, resolution turns on whether plaintiffs are entitled to judgment as a matter of law. See Dumdeang v. Commissioner, 739 F.2d 452, 453 (9th Cir.1984).

II

RESOLUTION OF THE MOTION

Under the Tax Equity and Fiscal Responsibility Act, a $500 penalty is imposed upon:

any individual [who] files what purports to be a return of the tax imposed by subtitle A but which—(A) does not contain information on which the substantial correctness of the self-assessment may be judged, or (B) contains information that on its face indicates that the self-assessment is substantially incorrect____

1. R.C. § 6702(a)(1).

A. Undisputed Facts

Each plaintiff filed what purported to be an income tax return for the 1982 taxable year. In Fuller, the plaintiffs answered most of the questions, but wrote “OBJECT” as answers to certain, specific questions on the return. The return explained that the word “OBJECT” meant that the taxpayers refused to answer the question on the basis that they were invoking their rights under the Fifth Amendment against forced self incrimination. In Samski, the plaintiff answered all the questions, except that he wrote “ * ” as answers to certain specific questions on the return. The return explained that “ * ” represented the taxpayer’s objection on Fifth Amendment self incrimination grounds. In Jolly, the plaintiff wrote “object” to each and every question on the tax return, except that he answered the questions as to his name and address, his spouse’s occupation, and the amount withheld from his income. The return explains that “object” represents the taxpayer’s objection on Fifth Amendment self incrimination grounds.

In every case, where the tax return requested information as to the taxpayer’s total tax liability, these plaintiffs “objected” on Fifth Amendment grounds, stating that they refused to answer in order that they not be forced to incriminate themselves.

B. The Law

On these facts, the plaintiffs assert that they have not made a “self-assessment,” and that therefore the penalty provision of TEFRA does not apply to them. As plaintiffs see it, they have not made a “self-assessment,” but have instead specifically refused to make such an assessment. The Government on the other hand, argues that the plaintiffs have made a “self-assessment.” In the alternative, the Government argues that even if the plaintiffs have not made a “self-assessment,” such an assessment is not required under the statute. Resolution of the motion thus turns upon the correct interpretation of the statute, a pure question of law.

The goal of statutory construction is to “ascertain the congressional intent and give effect to the legislative will.” Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). The tools for determining the legislative will are derived from established canons of statutory construction. Cf. Blackfeet Tribe of Indians v. Montana, 729 F.2d 1192, 1201 (9th Cir.1984) (en banc) (canons are guideposts to Congress’ intent), aff’d, — U.S. —, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985).

The starting point in any endeavor to construe a statute is always the words of the statute itself. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979)); Brothers v. First Leasing, 724 F.2d 789, 792 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 121, 83 L.Ed.2d 63 (1984). Unless the Congress has clearly indicated that its intentions are contrary to the words it employed in the statute, this is also the ending point of the interpretation. American Tobacco, 456 U.S. at 68, 102 S.Ct. at 1537 (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590, 7 L.Ed.2d 492 (1962)); Tulalip Tribes of Washington v. F.E.R.C., 732 F.2d 1451, 1455 (9th Cir.1984) (citing Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980) ).

1. What is a “Self-Assessment”?

As noted, the plaintiffs in these cases “objected,” on Fifth Amendment grounds, when asked to state their income tax liability. The first question of statutory construction, therefore, is whether or not the plaintiffs made a “self-assessment” within the meaning of the statute. Neither party has been able to identify a textual definition of “self-assessment” in the Internal Revenue Code itself, nor has the court’s own research revealed one.

The definition of “assessment,” however, is readily at hand. The Secretary of the Treasury is charged with making all “assessments” under the Internal Revenue Code. See I.R.C. § 6201(a). This duty is discharged by “recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary.” I.R.C. § 6203 (emphasis added). “Assessment” therefore refers to the Secretary’s calculation of the taxpayer’s liability, and the recording of that liability in the manner prescribed by law. Cf. Rambo v. United States, 492 F.2d 1060, 1061 n. 1 (6th Cir.1974), cert. denied, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed.2d 103 (1976); Cohen v. Gross, 316 F.2d 521, 522-23 (3d Cir.1963). This interpretation of “assessment” is specifically supported by Supreme Court authority in explaining the notion of an “assessment”:

A tax is an exaction by the sovereign, and necessarily the sovereign has an enforceable claim against every one within the taxable class for the amount lawfully due from him. The statute prescribes the rule of taxation. Some machinery must be provided for applying the rule to the facts in each taxpayer’s case, in order to ascertain the amount due. The chosen instrumentality for the purpose is an administrative agency whose action is called an assessment. The assessment may be a valuation of property subject to taxation which valuation is to be multiplied by the statutory rate to ascertain the amount of tax. Or it may include the calculation and fix the amount of tax payable, and assessments of federal estate and income taxes are of this type. Once the tax is assessed, the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives.

Bull v. United States, 295 U.S. 247, 259, 55 S.Ct. 695, 699, 79 L.Ed. 1421 (1935) (emphasis added).

Under the ordinary usages of the English language, a “self-assessment” would appear to be an “assessment” which is accomplished by the taxpayer himself. In Commissioner v. Lane-Wells Co., 321 U.S. 219, 64 S.Ct. 511, 88 L.Ed. 684 (1944), the taxpayer denied liability for income taxes on the form it filed with the IRS, and failed to provide thereon information from which the IRS could calculate the liability. The court stated:

“[T]o obtain data on which corporations subject to the tax could be identified and assessed was the very purpose of requiring a separate return addressed to that liability____ [¶] Congress has given discretion to the Commissioner to prescribe by regulation forms of returns and has made it the duty of the taxpayer to comply. It thus implements the system of self-assessment which is so largely the basis of our American scheme of income taxation. The purpose is not alone to get tax information in some form but also to get it with such uniformity, completeness, and arrangement that the physical task of handling and verifying returns may be readily accomplished.”

321 U.S. at 223-24, 64 S.Ct. at 513. The expected definition of “self-assessment” thus appears to be supported by the discussion in Lane-Wells. I therefore conclude that a self-assessment is the taxpayer’s own representation on the income tax return of his or her tax liability.

This conclusion is supported by Ninth Circuit authority. In Jenney v. United States, 755 F.2d 1384 (9th Cir.1985), the taxpayers claimed a “conscience deduction” on their income tax return, and reduced their tax liability accordingly. On an attached sheet of paper, the taxpayers reported their income, and what their tax would have been if the deduction were not considered. The question tendered to the court was whether the correct “self-assessment” had to appear on the proper line of the return or if it was sufficient that it appear on the attached sheet of paper. The court stated:

In our view, the term “self-assessment” refers to the amount of tax liability reported on the face of the return and not to the amount reported in the attached statements or explanations, because the purpose of our tax system of self-assessment is not alone to get tax information in some form but also to get it with such uniformity, completeness, and arrangement that the physical task of handling and verifying returns may be readily accomplished.

Jenney, 755 F.2d at 1386 (quoting Lane-Wells, 321 U.S. at 223, 64 S.Ct. at 513). The Government correctly points out that Jenney was not concerned with the definition of “self-assessment,” but rather with where the “self-assessment” had to appear on the return, whatever its definition. Nevertheless, Jenney specifically stands for the proposition that whatever a self-assessment is, it is that representation which must be reported in the place of the tax return which asks for the taxpayer’s tax liability.

The court states:

The taxpayers did not enter on lines 59 and 67 the correct amount due____ Had they done so, section 6702 would not apply because the self-assessment would be accurate.

Id. at 1386-87. Those lines call for a statement of the “Total tax” due, and the “Total” credits against the tax due. It follows, then, that the “self-assessment” could only be the amount of the taxpayer’s tax liability, as requested at Line 59 of the return.

Finally, I note that the Government itself appears to agree with this definition of “self-assessment.” In arguing that plaintiff made such an assessment, it states: “[w]e believe that plaintiffs did make a ‘self-assessment,’ that is, a representation [of] what their tax liability was.” (United States’ Opposition at 13). In sum, there does not appear to be any serious dispute that a “self-assessment” is the taxpayer's representation, on the tax return, of his or her tax liability.

2. Did Plaintiffs Make a Self-Assessment ?

The tax returns of each of the plaintiffs (including Jolly) are before the court on this summary judgment motion, and therefore I may resolve the question of whether a “self-assessment” was made in those returns. The conclusion appears to me inescapable that these plaintiffs failed to make a representation of what their tax liability was. Each of them specifically refused to make such a representation on the basis of their asserted Fifth Amendment right against compelled self-incrimination. The Government offers no theory, whether legal, logical, or linguistic, in support of its apparent assertion that refusal to make any representation is functionally equivalent to the making of a false representation. I conclude that for purposes of I.R.C. § 6703(a), these plaintiffs have failed to make a self-assessment.

3. Is a Self-Assessment Necessary ?

The Government argues that no self-assessment is necessary in order for the IRS to impose the $500 fine for the making of a false self-assessment, or for the making of a self-assessment the correctness of which cannot be determined. I cannot agree. The Government’s approach would require the court to add the provision “or does not contain a self-assessment,” at I.R.C. § 6702(a)(1). As the statute currently stands, it contains no such provision and, indeed, it assumes that a self-assessment has been made. If such an assumption were not' implicit in the provision, it would make no sense; it would impose certain standards on self-assessments even though those self-assessments did not exist.

The Government’s interpretation of the statute violates two important canons of statutory construction. First, the court cannot rewrite a statute to conform to what it thinks Congress intended to say or what Congress “should” have said. See Badaracco v. Commissioner, 464 U.S. 386, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) (citing TVA v. Hill, 437 U.S. 153, 194-95, 98 S.Ct. 2279, 2301-02, 57 L.Ed.2d 117 (1978)). Second, the court cannot interpret the statute so that it makes no sense. See Flint v. California, 594 F.Supp. 443, 448 (E.D.Cal.1984) (quoting United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)). Thus, the court will not add the words “or does not contain a self-assessment,” nor can the court interpret the statute to impose a standard upon a representation of tax liability even when the representation has not been made.

C. The Cases

The Government points out that numerous cases have granted summary judgment to the Government upon allegations indis-' tinguishable from those before this court. This is of course a very serious matter which must be seriously addressed.

In Boday v. United States, 759 F.2d 1472 (9th Cir.1985), the plaintiffs filed income tax returns essentially identical to those giving rise to these cases. The plaintiffs there, as here, sought a refund of the $500 penalty imposed by the IRS pursuant to I.R.C. § 6702. The circuit court affirmed the summary judgments granted in favor of the Government, finding against the plaintiffs on their Fifth Amendment claim, their Due Process claim, their vagueness claim, and their Origination Clause claim, all claims also made by these plaintiffs. The court did not, however, address the issue presented to this court, namely, whether the penalty provision applies to these plaintiffs at all since they have refused to make a self-assessment. Under rather stringent standards recently announced by the Supreme Court, where an issue was not addressed, a court cannot assume that it was implicitly decided. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984) (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974)) (even subject-matter jurisdictional questions are open until specifically addressed). There being no other Ninth Circuit cases addressing whether a self-assessment is necessary, the question must be considered open in this circuit.

The Government cites a slew of other cases in which summary judgment was granted to the Government on facts essentially identical to those before this court. Once again, however, in most of those cases the issue of whether a self-assessment was necessary was never addressed. See Heitman v. United States, 753 F.2d 33 (6th Cir.1984) (per curiam); Martinez v. I.R.S., 744 F.2d 71 (10th Cir.1984) (per curiam); Baskin v. United States, 738 F.2d 975 (8th Cir.1984) (per curiam); Betz v. United States, 753 F.2d 834 (10th Cir.1985) (per curiam); Brennan v. Commissioner, 752 F.2d 187 (6th Cir.1984) (per curiam); House v. United States, 593 F.Supp. 139 (W.D.Mich.1984); Liljenfeldt v. United States, 588 F.Supp. 966 (E.D.Wisc.), aff’d mem. 753 F.2d 1077 (7th Cir.1984); Miller v. United States, 577 F.Supp. 980 (N.D.Ind. 1984); Paulson v. United States, 758 F.2d 61 (2d Cir.1985) (per curiam); Boomer v. United States, 755 F.2d 696 (8th Cir.1985) (per curiam); Aune v. United States, 582 F.Supp. 1132 (D.Ariz.1984), aff’d mem., 765 F.2d 148 (9th Cir.1985); Knottnerus v. United States, 582 F.Supp. 1572 (N.D.Ill. 1984); Ueckert v. United States, 581 F.Supp. 1262 (D.N.D.1984); Reed v. United States, 581 F.Supp. 718 (D.Colo.1984); Matz v. United States, 581 F.Supp. 714 (N.D.Ill.1984); Stamp v. Commissioner, 579 F.Supp. 168 (N.D.Ill.1984); Kloes v. United States, 578 F.Supp. 270 (W.D.Wisc. 1984); Bearden v. Commissioner, 575 F.Supp. 1459 (D.Utah 1983); Rowe v. United States, 583 F.Supp. 1516 (D.Del.), aff’d mem., 749 F.2d 27 (3rd Cir.1984). In most of the remaining cases cited by the Government, the question whether a self-assessment was necessary was not discussed because a self-assessment in fact had been made. See Welch v. United States, 750 F.2d 1101, 1103 (1st Cir.1985); Kahn v. United States, 753 F.2d 1208, 1211 (3d Cir.1985); Franklet v. United States, 578 F.Supp. 1552, 1554 (N.D.Cal.1984), aff’d, 761 F.2d 529 (9th Cir.1985) (per curiam).

Of the “legion” of cases cited by the Government, then, only two address the issue currently before the court: must the plaintiffs make a “self-assessment” of their tax liability before the penalty provision of I.R.C. § 6702(a) may apply to them?

In Vaughn v. United States, 589 F.Supp. 1528 (W.D.La.1984), plaintiff made a “self-assessment” on his income tax return. He reported “NONE” as his total tax due. Id. at 1531. Nonetheless, the court states:

Vaughn asserts in his complaint that section 6702 does not apply to tax returns that do not report a self-assessment. This assertion is inconsistent with the legislative history, which states that “the penalty is available against any individual filing a purported return in which insufficient information to calculate the tax is given____”

Id. The statement is dicta. It was completely unnecessary since the court had already held that the plaintiff had in fact made a self-assessment.

The only remaining case which specifically deals with this issue is Milazzo v. United States, 578 F.Supp. 248 (S.D.Cal.1984). I set out the relevant portions of the court’s opinion on the issue:

The plaintiffs argue that the penalty contained in § 6702 does not apply to “returns which do not report a self-assessment” of tax. On the contrary, plaintiffs’ conduct is the raison d’etre of § 6702____ [¶] This law was clearly passed to deal with tax protesters, and no application could be more appropriate than the four in issue here.

Milazzo, 578 F.Supp. at 250. There are two reasons that require me respectfully to disagree with the conclusion reached in Milazzo. First, the opinion assumes that congressional intent and congressional motivation are the same thing; as I shall explain, the difference is crucial, and in this case, dispositive. Second, the opinion assumes that “self-assessment” means the amount of the tax due rather than the taxpayer’s representation of the tax due. As I have previously explained, this assumption appears to be incorrect.

Milazzo sums up its discussion of the “self-assessment” issue by noting what appears to be quite true: “This law was clearly passed to deal with tax protestors____” Id. at 250. I will assume arguendo that Congress did wish to “deal with tax protestors.” Unlike the Milazzo court, however, I cannot end my analysis here, for this is only a recognition of Congress’ motivation in enacting the legislation. It simply is not enough to discover what the Congress had in mind; in construing congressional legislation, “ ‘[w]e do not inquire what the legislature meant; we ask only what the statute means.’ ” S & E Contractors, Inc. v. United States, 406 U.S. 1, 13 n. 9, 92 S.Ct. 1411, 1418 n. 9, 31 L.Ed.2d 658 (1972) (quoting Holmes, J., “The Theory of Legal Interpretation,” 12 Harv.L.Rev. 417, 419 (1898)).

The distinction between intent and motive is not merely academic, and certainly not in this case. As I have noted earlier, the primary task of a court engaged in statutory construction is to ascertain and give effect to the will of the Congress. (See § 11(B), supra). This does not mean, however, that the court is to attempt to explore the subjective beliefs of the individual Members of Congress. It means only that the court must determine what Congress provided for in the statute. Thus, the task before the court is more precisely described as the determination of the legislative will as expressed in the statute, since the legislative will must be expressed in the words it chooses. Banco Mexicano De Commercio e Industria v. Deutsche Bank, 263 U.S. 591, 602, 44 S.Ct. 209, 211, 68 L.Ed. 465 (1924). Indeed, it is for this very reason that the first canon of statutory construction is to look to the words employed by the legislature. In the absence of ambiguity, those words are conclusive of the legislature’s intent. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981) (quoting Consumer Product Safety Commission, 447 U.S. at 108, 100 S.Ct. at 2056).

In Milazzo (as in nearly all the cases dealing with “tax protestors”), the court looks to the legislative history to discern what the Congress had in mind without first determining that its intentions could not be gleaned from the words of the statute. See Milazzo, 578 F.Supp. at 250. I can find no ambiguity in the words used by the Congress and therefore find no need to look to the legislative history in an attempt to determine who the Congress really wanted to “get.” In unambiguous terms, the Congress addressed the penalty statute only to those who had made a “self-assessment,” whatever the meaning of the phrase might be. The legislative intent, therefore, as discernible from the statute, is that Congress wished to “get” certain people who had made “self-assessments.” The statute itself further establishes that among those persons, Congress wished to “get” those whose self-assessments were obviously incorrect, or those who made it impossible (or perhaps difficult) for the IRS to determine whether or not the self-assessment was correct. See I.R.C. § 6702(a)(1), (2).

I say again, this court can discern no ambiguity in the words used in the statute. The court is therefore duty bound to find the meaning of the statute “in the language in which it is expressed.” United States v. Hill, 248 U.S. 420, 424, 39 S.Ct. 143, 144, 63 L.Ed. 337 (1919). My reading of the statute is that it applies only to persons who have at least made some representation of their tax liability; therefore it does not apply to any of these plaintiffs.

Since plaintiffs did not provide a self-assessment, the penalty was wrongly imposed and summary judgment for the plaintiffs is GRANTED. The Clerk of the Court is directed to enter judgment on behalf of each of the plaintiffs forthwith.

IT IS SO ORDERED.

      . The Government previously moved to dismiss Samski on the basis that plaintiffs refund was not timely filed with the IRS. The motion was denied. See Order, May 23, 1985, at 1055-56.

      . The Fuller return represents that the taxpayers had no income from "wages, salaries, tips, etc.," and income of 124.07 from "interest.” No other income is reported. The return contains “OBJECTIONS" to the amount of "business income," “capital gain or (loss),” "supplemental gains or (losses),” and "capital gain distributions." The return also contains "OBJECTIONS” to the reporting of the amount of "moving expense[s],” "self-employment tax,” "minimum tax,” “alternative minimum tax,” "tax from recapture of investment credit," and “earned income credit.” Other questions are answered "NONE," or are left blank, an apparent representation that the questions are not applicable or that the answer is "ZERO.” (for example, the amount of income from "Dividends” is left blank).

      . Samski wrote "NONE” as answers to the remaining questions.

      . The Fullers wrote "OBJECT,” Samski wrote " * ”, and Jolly wrote "object” in response to the question requesting that they state their total tax liability. (See Returns, Line 59).

      . This court has recently bemoaned the Supreme Court’s erratic phrasing and application of the "plain meaning” rule. See Sierra Club v. Watt, 608 F.Supp. 305, 332 n. 49 (1985). No benefit would be gained by restating that history here. Although sometimes this trial judge feels the rule's application differs from case to case, I assume that the rule’s vitality is presently real. See Garcia v. United States, — U.S. —, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984).

      . Alternatively, the self-assessment may be the providing, on the return, of enough information for the IRS to calculate the return. See I.R.C. § 6014. Neither side argues that plaintiffs have made a "self-assessment" sufficient for purposes of section 6014. In any event, neither party addresses the issue, and therefore I decline to reach it.

      . The Jenney court was discussing the same taxable year at issue in this case.

      . Accord, Franklet v. United States, 578 F.Supp. 1552, 1554-55 (N.D.Cal.1984), aff’d, 761 F.2d 529 (1985) (per curiam). In Franklet, the district court held that the plaintiffs, who had claimed "war tax credits," and had reduced their tax liabilities accordingly, had made “self-assessments” within the meaning of the penalty statute. The court stated that ”[w]hatever other meaning may be attributed to the term ‘self-assessment’, it clearly includes a taxpayer’s representations on the return as to the tax due or refund claimed.” 578 F.Supp. at 1555. The Ninth Circuit affirmed the judgment ”[f]or the reasons stated in the opinion." 761 F.2d at 530.

      . Because of my resolution of this case on statutory grounds, I do not reach the merits of plaintiffs’ Fifth Amendment (or any other) claims. But see, Hudson v. United States, 766 F.2d 1288 (9th Cir.1985) (per curiam); Jolly v. United States, 764 F.2d 642 (9th Cir.1985).

      . Plaintiffs do not in these cases seek to represent their tax liability as "zero.” They simply refuse to make any representation.

      . It does not seem a startling proposition that a statute which imposes standards upon a particular representation, implicitly assumes that the representation will be made. If the representation is not made, this court could not possibly determine whether the standard has been met.

      . Similarly, in none of the rash of recent Ninth Circuit cases involving or related to the issues in this case, has the circuit addressed this specific issue. See Hudson v. United States, 766 F.2d 1288 (1985); Jolly v. United States, 764 F.2d 642 (1985); Franklett v. United States, 761 F.2d 529 (1985); aff’g 578 F.Supp. 1552 (N.D.Cal.1984); Olson v. United States, 760 F.2d 1003 (8th Cir. 1985). See also, Harris v. United States, 758 F.2d 456 (1985) (Origination Clause); Nunley v. Commissioner, 758 F.2d 372 (1985) (per curiam); Thomas v. United States, 755 F.2d 728 (1985). In Hudson, the court apparently assumed that the statute reached the conduct of those who failed to make a self-assessment. Hudson, 766 F.2d at 1292. In Jolly, one of the IRS’ reasons for assessing the penalty was plaintiff's failure to make a self-assessment. The plaintiff did not raise the issue before the Ninth Circuit, however, and the court did not address it. See Jolly, 764 F.2d at 643.

      . Even if Congress sought to deal with tax protestors, legal analysis cannot end by denominating these plaintiff tax protestors, i.e. bad people, and therefore subject to the statute. There is no cliche more often repeated than that which says we are a nation of laws and not of men. One truth about a cliche is that oft repeated statements are oft repeated because they embody a deeply held set of beliefs. If that cliche has any meaning, it is that we decide cases on the basis of the law and not ad hominem.

      . On analysis, of course, it is impossible to know what Congress had in mind. While members of Congress have minds, to speak of what Congress had in mind is to speak in metaphors, however seductive.

      . As to those who make no self-assessments, Congress may already have provided for them in other civil or criminal statutes, but that is not in issue here.

      . I do not hold or even suggest that the motivation of the legislature, in the sense of the social ill that Congress sought to address in the statute, is always irrelevant. In the presence of a statutory ambiguity, motivation (in that sense) may well serve as evidence of what the legislature provided for in the statute, i.e. legislative "intent." But where, as here, there is no ambiguity, motivation has no role in the construction of the statute. More to the point, even in discussing the legislative history, courts do so for the purpose of construing the language used, not to rewrite it.

      . The court needs to depart from its legal analysis to briefly observe something about our legal climate. I recognize that however appropriate my disposition of the instant motion is under my legal analysis above, it runs counter to a seriously held view that “tax protesters” are endangering our national commitment to the system of self-assessment and that a brake must be placed upon their conduct. This opinion should not be read as disputing that contention. Nonetheless, it is for Congress to determine how that problem is to be addressed. Courts can but enforce the law, and we do serious damage when we seek to fill in for Congress. If this case is reversed, so be it. I am satisfied that in deciding this case on the law and not ad hominem, I have done my duty and can do no more. I leave to courts higher in our hierarchy the correction of any error.


author: KANE, District Judge.

text:
    CENTENNIAL STATE CARPENTERS PENSION TRUST FUND, et al., Plaintiffs, v. WOODWORKERS OF DENVER, INC., Defendant.
    Civ. A. No. 84-K-762.
    United States District Court, D. Colorado.
    Aug. 13, 1985.

      Pamela Martin, Lakewood, Colo., for plaintiffs.
    Robert R. Miller and Kate Raabe, Stettner, Miller & Cohn, P.C., Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is an action to recover withdrawal liability under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Plan Amendments of 1980 (MPPAA), 29 U.S.C. § 1381 et seq.. Plaintiff Centennial State Carpenters Pension Trust Fund is a multiemployer plan as defined in 29 U.S.C. § 1002(37)(A), that primarily covers employees in the building and construction industry. The plan’s trustees are also plaintiffs. Defendant Woodworkers of Denver, Inc. employed certain workers formerly covered by the plan. Jurisdiction is based upon 28 U.S.C. § 1331 and 29 U.S.C. § 1451(c).

Woodworkers moves for summary judgment challenging the constitutionality of the MPPAA on several grounds. Plaintiffs cross-move for summary judgment denying that the Act is unconstitutional and arguing that they are entitled to recover as a matter of law the entire amount of withdrawal liability because defendant failed to demand arbitration under 29 U.S.C. § 1401(a)(1). Both sides have briefed the issues and I am now prepared to rule.

I

The MPPAA was enacted in 1980 to strengthen financially multiemployer pension plans by discouraging employers from withdrawing and leaving a plan with unfunded liabilities. H.R.Rep. No. 859, 96th Cong., 2d Sess. 67, reprinted in 1980 U.S. Code Cong. & Ad.News 2918, 2935. It attempts to accomplish this by requiring withdrawing employers to pay to the multiemployer fund “withdrawal liability” or a proportionate share of the fund’s “unfunded vested benefit liability.” 29 U.S.C. § 1381. The “vested benefit liability” is the actuarial present cash value of all of the benefits that vested. Where the pension fund has insufficient assets to cover its vested benefit liability, “the difference between the assets and the liability is the ‘unfunded vested benefit liability’.” Board of Trustees v. Thompson Building Materials, Inc., 749 F.2d 1396, 1399 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2116, 85 L.Ed.2d 481.

The calculation of the amount of the withdrawal liability is done by the trustees of the pension plan. 29 U.S.C. § 1382. Any dispute between the employer and the trustees regarding either the amount or the fact of liability must be resolved by arbitration. 29 U.S.C. § 1401(a)(1). But a demand for arbitration must be filed within 60 to 180 days depending upon whether it is initiated jointly or separately. 29 U.S.C. § 1401(a)(1). “In the arbitration proceedings, the trustees’ calculations are presumed correct, unless the employer shows by a preponderance of the evidence that the determination was unreasonable or clearly erroneous.” Id.) 29 U.S.C. § 1401(a)(3)(A). Either party may appeal the arbitrator’s award to district court. 29 U.S.C. § 1401(b)(2).

The facts in this case are essentially undisputed. Prior to April 1982, defendant Woodworkers entered into a collective bargaining agreement with a local branch or affiliated district council of the United Brotherhood of Carpenters and Joiners of America. Under its terms, defendant promised to make contributions to the plan for each hour of specified work performed by Woodworkers’ employees. That obligation only ran the life of the contract.

On April 15, 1982, the collective bargaining agreement between Woodworkers and the union expired. Despite negotiation efforts, the parties failed to agree upon a new contract and in the fall of 1982 a successful decertification election established that the union no longer represented a majority of defendant’s employees. As a result, Woodworkers’ obligation to contribute to the plan ceased. However, defendant continued to perform the same type of work in the state of Colorado.

By letter dated May 2, 1983, plaintiff trustees notified Woodworkers that its withdrawal liability under the MPPAA totaled $39,211 and demanded payment pursuant to an installment schedule. Defendant neither paid plaintiffs any portion of the withdrawal liability nor demanded arbitration under 29 U.S.C. § 1401(a)(1). So on April 4, 1984, plaintiffs filed the instant action. By way of defense, Woodworkers disagrees with the amount of its withdrawal liability and attacks the constitutionality of the Act.

II

A. Defendant’s constitutional challenge of the MPPAA can hardly be characterized as novel. At least six circuits have already addressed the identical issues and upheld the constitutionality of the Act. See Keith Fulton & Sons, Inc. v. New England Teamsters and Trucking Industry Pension Fund, 762 F.2d 1137 (1st Cir.1985); Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 729 F.2d 1502 (D.C.Cir.1984); Textile Workers Pension Fund v. Standard Dye & Finishing Co., Inc., 725 F.2d 843 (2nd Cir.1984) cert. denied, — U.S. —, 104 S.Ct. 3554, 82 L.Ed.2d 856; Person Co., Inc. v. Bakery Drivers & Salesmen Local 194, 739 F.2d 118 (3rd Cir.1984); Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628 (4th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984); Peick v. Pension Benefit Guaranty Corp., 724 F.2d 1247 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984). Indeed the only case cited by defendant in support of its position, Keith Fulton & Sons, Inc. v. New England Teamsters and Trucking Industry Pension Fund, 762 F.2d 1124 (1st Cir. 1984) was reheard en banc by the First Circuit Court of Appeals and reversed on May 23, 1985, 762 F.2d 1137. Closer to home, two judges in this district have upheld the constitutionality of the MPPAA. See Central Corp. v. Trustees of the Centennial State Carpenters Pension Trust Fund, No. 83-JM-2510, slip op. (D.Colo. April 16, 1985) (Judge John P. Moore); Bassett Construction Company v. Trustees of the Centennial State Carpenters Pension Trust Fund, No. 83-F-980, slip op. (D.Colo. February 22, 1985) (Chief Judge Sherman G. Finesilver).

In spite of this precedent, Woodworkers argues that the MPPAA violates the fifth amendment by a) impairing its contract rights; b) taking property without compensation; and c) omitting important due process safeguards in the determination and collection of withdrawal liability, as well as its seventh amendment right to a jury trial. I am not persuaded by any of its arguments and join the unanimous conclusion of the other circuits that the MPPAA is constitutional.

Turning first to the impairment of contract rights issue, I note that the United States Supreme Court in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., — U.S. —, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984) recently concluded that the rationality standard and not contracts clause analysis applies to the review of federal economic legislation. Under that standard, economic legislation is presumed to be constitutional until the movant can establish that the legislature acted in an arbitrary and irrational way. Thompson Building, supra at 1401. I consider the withdrawal provisions of the MPPAA to be a rational method of “ensuring that each member of a multiemployer plan shoulders its portion of the collective burden imposed to safeguard the employees’ right to full compensation.” Terson, supra at 121; accord Washington Star, supra at 1510; Peick, supra at 1266; Thompson Building, supra. As the Ninth Circuit explained, “[b]y forcing the economic burden upon the employer at the time of withdrawal, the Act insures that the employer will give appropriate consideration to the fund’s soundness as part of the withdrawal decision.” Thompson Building, 749 F.2d at 1402. I hold that the withdrawal liability provisions of the MPPAA do not contravene the due process requirements of the constitution because they rationally further a legitimate congressional concern.

I also conclude that the MPPAA does not violate the takings clause of the fifth amendment. First, the law is clear that the contractual right in question here is simply not the type of distinct and identifiable “property” protected by the takings clause. Peick, supra at 1276. Defendant’s only interest is a “purely contract-based ‘right’ to avoid liability for further contributions to the pension plans in which [it] participates”; and this is in “no way analogous to the type of interests in specific property protected under the takings clause.” Id.; see United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982); Thompson Building, supra at 1406. Even assuming, arguendo, that this contract right constitutes “property” under the fifth amendment, Woodwork’s argument still fails. The Supreme Court made clear in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978) that adjustments in economic benefits and burdens to promote the common good do not constitute a taking under the fifth amendment. See Terson, supra at 121; Republic Industries v. Teamsters, 718 F.2d at 642-43.

Woodworkers’ final due process argument is that the absence of adequate procedural safeguards in the withdrawal liability provisions of the MPPAA violates defendant’s fifth amendment rights. Within this broad category, Woodworkers makes sweeping charges that the procedures to determine and collect withdrawal liability are improper, that the presumption of correctness of the calculation is unfair, and that the trustees are inherently biased. I find little merit in these contentions.

I hold that the MPPAA did not deprive defendant of its property without a pre-seizure hearing “by requiring payment of disputed amounts during the pendency of a review or appeal challenging the accuracy of the fund’s calculations.” Thompson Building, supra at 1404; see 29 U.S.C. § 1399(c)(2); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). There is absolutely no evidence before me that defendant has been deprived of any property. Woodworkers refused to pay plaintiffs any withdrawal liability. Moreover, defendant also failed to exercise its statutory rights to call into question the accuracy of the calculations, to request reconsideration by the trustees, to initiate arbitration or to seek review by the courts. I therefore conclude that Woodworkers was afforded all of the process that it was due. Thompson Buildings, supra.

I find defendant’s charge of institutional bias equally unpersuasive. In Keith Fulton, supra, the First Circuit reconsidered en banc the issue of institutional bias as well as the constitutionality of the prescribed methods of assessing liability with the statutory presumption. The court concluded that any trustee bias that might exist was not of a constitutional dimension. Id. at 1143. Since an equal number of trustees are chosen by the participating employers and the participating unions, their allegiances are balanced. Furthermore, the trustees are fiduciaries required by law “to act neutrally and reasonably in making withdrawal liability determinations.” Washingtons Star, supra at 1511. Any determination they make may always be challenged by the parties. Keith Fulton, supra at 1143.

The First Circuit also ruled that the rebuttable presumption that the trustees calculated the withdrawal liability correctly is not constitutionally deficient. “Read together ... these provisions do little more than allocate the burden of proof to the challenger and direct that issues which are close be resolved in favor of the nonjudicial dispute resolver.” Keith Fulton, supra at 1146, quoting Republic Industries v. Teamsters, supra at 640-641.

Before turning to Woodwork’s seventh amendment argument, I note that defendant’s motion for summary judgment casually mentions the equal protection clause, but its brief neither refers to such an argument nor develops it any way. I do not believe that there is any evidence to support a finding that multiemployers are penalized more than single employers. See Bassett, supra. Accordingly, I reject any equal protection argument that defendant intended to make but failed to articulate.

Finally, defendant maintains that the withdrawal liability provisions requiring arbitration violate its right to a jury trial under the seventh amendment. This is perhaps the most specious challenge of all. The seventh amendment only grants a right to trial by jury in “suits at common law.” See Atlas Roofing Co. v. OSHA, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). Thus, “[w]hen Congress creates a new cause of action and remedies unknown to the common law, it may vest factfinding in a tribunal other than a jury, free from the strictures of the Seventh Amendment.” Textile Workers, supra at 855. See also Republic Industries v. Teamsters, supra at 642. Woodworkers has no right to a jury under the MPPAA and therefore cannot be heard to complain that the Act impinges upon its seventh amendment rights.

B. This brings me to plaintiffs’ cross-motion for summary judgment. Plaintiffs contend that they are entitled to judgment as a matter of law because defendant failed to initiate arbitration as required by the MPPAA. If I refuse to hear defendant’s calculation challenge and find that the time for arbitration has passed, then according to plaintiffs they should be awarded the full amount of the withdrawal liability plus interest, costs and attorneys’ fees. Defendant admits that it did not initiate arbitration but insists that it had no obligation to do so before the resolution of the constitutional questions.

I begin with the well-established principle that the arbitration requirement under the MPPAA, 29 U.S.C. § 1401(a)(1) must be analyzed as a question of exhaustion of remedies and not as an issue of an absolute jurisdictional bar vel non. I.A.M. Pension Fund Benefit Plan v. Stockton Tri Industries, 727 F.2d 1204, 1207 (D.C. Cir.1984); Republic Industries v. Teamsters, supra at 634-635; Shelter Framing Corp. v. Pension Benefit Guaranty Corp., 705 F.2d 1502, 1503 (9th Cir.1983); Republic Industries v. Central Pennsylvania Teamsters, 693 F.2d 290 (3rd Cir.1982). Hence I must “balance the agency’s interests in applying its expertise, making a proper record, and maintaining an efficient, independent administrative system with the interests of private parties in finding adequate remedies.” Shelter Framing, supra at 1509; see Montgomery v. Rumsfield, 572 F.2d 250, 253 (9th Cir.1978). In applying this analytical approach, however, the constitutional question and the amount of withdrawal liability question must be treated separately.

Notwithstanding the importance of the exhaustion doctrine and its underlying policy of judicial economy, Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), I find that there is no arbitration requirement under the MPPAA for the constitutional issues. Shelter Framing, supra at 1509; Republic Industries v. Central Penn., supra; T.I.M.E.-DC, Inc., v. Trucking Employers of No. Jersey Welfare Fund, Inc., 560 F.Supp. 294 (E.D.N.Y.1983). Section .1401(a)(1) only applies where the establishment or amount of withdrawal liability is at issue. Furthermore, arbitration .of the com stitutional questions would be of no value to the parties or the court. It would neither develop a better record for adjudicating the constitutional questions nor eliminate the need to consider those challenges. Thus, Woodworkers’ position is correct insofar as it had no obligation to initiate arbitration proceedings on the constitutional claims before coming to the district court.

I reach a different conclusion, however, with respect to its challenge to the trustees’ calculation of withdrawal liability. Under the statutory scheme of the MPPAA all such disputes must first be resolved by arbitration; and the parties must initiate arbitration within the limitation period set forth in 29 U.S.C. § 1401. Here defendant was notified of its withdrawal liability in May 1983. Yet it neither responded to plaintiffs’ demand for payment nor filed a demand for arbitration under the Act. Indeed, almost one year passed before plaintiffs, not defendant, filed this action; and it is only by way of an affirmative defense that defendant even questions the computation of its withdrawal liability.

In Republic Industries v. Teamsters, supra, the Fourth Circuit held that the filing of the district court action tolled the period of limitations under section 1401. There, the employer challenged both the constitutionality of the MPPAA as well as the determination of the trustees that it was a facility under the Act. Plaintiff employer filed its district action before the statute of limitations on the arbitration demand had run. The court found it to “be equitable that when Republic has made a not frivolous challenge to the constitutionality of the arbitration procedures, the validity of which has not heretofore been definitively decided, the pendency of the litigation should toll the running of the period prescribed in § 1401(a)(1)(B).” Id. at 644. Consequently, it ruled that defendant had sixty days left within which to demand arbitration.

Unlike Republic Industries v. Teamsters, supra, I find that Woodworkers failed to initiate arbitration on the issue of calculation within the time periods prescribed by Section 1401(a)(1). I further find that defendant did not file a district court action within the limitation periods in Section 1401 and thereby failed to toll the statute of limitations. To be sure, the entire period ran many months before plaintiffs’ filed this action. Moreover, defendant raises the computation question only as a defense to plaintiffs’ claim for relief. Based upon these facts it appears that Woodworkers is trying to circumvent the Act’s clear and unambiguous requirement that all disputes involving the amount of liability first be submitted to arbitration. To permit it to raise now as an' afterthought the calculation issue would contravene not only the express language of the Act, but also the intent of the legislature. It would also encourage other parties to raise frivolous constitutional challenges of the MPPAA as a method of bootstrapping their dilatory calculation claims. I refuse to recognize such a practice. I therefore hold that it is improper to consider defendant’s calculation challenge under the circumstances of this case. Accordingly, I grant plaintiff’s motion for summary judgment.

Plaintiffs also seek interest, costs and attorneys’ fees. I find that because Woodworkers is in default under 29 U.S.C. § 1399(c)(5), plaintiffs are entitled to the entire outstanding amount of withdrawal liability or $39,211, plus interest from the due date of the first payment which was not timely made, and costs incurred in connection with this action. The parties shall pay their own attorneys’ fees.

IT IS THEREFORE ORDERED THAT:

1. Defendant’s motion for summary judgment is denied.

2. Plaintiffs’ cross-motion of summary judgment is granted.

3. Judgment be entered in favor of plaintiff and against defendant for $39,211, plus interest from the due date of the first payment which was not timely made, and costs.

4. The parties shall pay their own attorneys’ fees.