F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 3, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DELBERT KYLER,
Plaintiff - Appellant,
v. No. 05-5185
MARK EVERSON, Commissioner of
Internal Revenue, in his personal capacity,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D. Ct. No. 4:05-CV-163-TCK)
Submitted on the briefs:*
Delbert Kyler, pro se.
Eileen J. O’Connor, Assistant Attorney General, Andrea R. Tebbets, Attorney, and
Patricia M. Bowman, Attorney, Tax Division, Department of Justice, Washington, D.C.;
and David E. O’Meilia, United States Attorney for the Northern District of Oklahoma,
Tulsa, Oklahoma, on the brief for Appellees.
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
*
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
TACHA, Chief Circuit Judge.
I. BACKGROUND
Delbert Kyler, appearing pro se, originally filed this claim for slander of title in
Oklahoma state court against the Commissioner of Internal Revenue, Mark Everson, after
the Internal Revenue Service filed two federal tax liens against his property. Mr. Kyler
contended that the Commissioner lacked authority to file such liens because no court
order gave him permission to do so. Mr. Kyler asked for $4.5 million in damages for
slander of title, inconvenience, aggravation, and malicious slander. The Government
removed the case to the Northern District of Oklahoma and sought dismissal of the
complaint for failure to state a claim upon which relief may be granted, pursuant to Fed.
R. Civ. P. 12(b)(6). Mr. Kyler filed a motion to remand and numerous motions to strike
the Government’s responses. The District Court denied all Mr. Kyler’s motions and
dismissed the complaint. Mr. Kyler timely appeals. Taking jurisdiction under 28 U.S.C.
§ 1291, we AFFIRM. In addition, because this appeal is legally frivolous, we GRANT
the Government’s motion for $8,000 in costs under 28 U.S.C. § 1912 and Fed. R. App. P.
38.
II. DISCUSSION
Reviewing de novo, see Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.
2005), we begin with the substance of Mr. Kyler’s legal contentions. Contrary to Mr.
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Kyler’s assertion, no federal authority stands for the proposition that for a federal tax lien
to be valid, there must be a federal court order signed by a federal judge. Rather, 26
U.S.C. §§ 6321 and 6322 establish that a lien automatically arises upon assessment of a
tax and continues until the taxpayer’s liability is satisfied or becomes unenforceable.
Moreover, to the extent this suit for damages is against the Commissioner in his official
capacity, it is barred by sovereign immunity, see Hawaii v. Gordon, 373 U.S. 57, 58
(1963) (sovereign immunity extends to agents and officers of the United States when the
acts complained of were undertaken in their official capacities), and to the extent the suit
is against the Commissioner in his personal capacity, he is entitled to qualified immunity,
see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (absent violation of clearly
established law, government officials performing discretionary functions are shielded
from civil liability). Therefore, the District Court properly dismissed this suit.
We next address the substance and spirit of Mr. Kyler’s multiple filings, both at
the District Court and on appeal. At every stage of the proceedings, Mr. Kyler has
accused government officials and court officers of criminal misconduct. Mr. Kyler stated
that the Commissioner “extorts money and property” and files “fraudulent instrument[s]
designed to scare the living daylights out of anyone who would dare to stand up to the
bully-thief [Commissioner].” He further contended that the Commissioner should “be
punished for his felony crimes but the typical Oklahoma County prosecutor would cry and
wet [his] pants at the thought of going up against the ultimate thug—[the
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Commissioner—]who can, albeit illicitly, exploit the powers of the United States for his
criminal thuggery.” Mr. Kyler claimed that the United States Attorney was “obviously
unschooled and untrained in the legal arts . . . [and] expects this court to bend over
backwards and kiss his . . . allegedly royal ass.” Mr. Kyler continued this diatribe on
appeal, stating in his opening brief that the Government and the District Court judge are
“criminals” and declaring his presumption “that this appellate panel will ‘save their
bacon’ by further co-joining in the high-level fraud.” His brief goes on to imply that the
District Court judge’s ruling was drug-induced, arguing that the dismissal of his case
“underscores the compelling need for mandatory random drug testing of federal officers.”
Further, in addition to the $4.5 million in compensatory damages Mr. Kyler seeks in his
complaint, he also calls for the termination, conviction, and imprisonment of the District
Court judge, the Commissioner, the Magistrate, the United States Attorney, and the
attorney with the Tax Division of the Department of Justice.
Upon receipt of Mr. Kyler’s appellate brief, the Government filed a motion for
sanctions in the amount of $8,000. Undeterred, Mr. Kyler filed a counter-motion for
sanctions against the Government, referring to the Government’s motion as “hate-filled,
anger-driven prattlings.” Mr. Kyler also objected to the Government’s answer brief
which he deemed a “work of fraud,” and he moved for a show cause hearing as to why
the Government’s attorney should not be referred to a special grand jury. Mr. Kyler
claimed that the attorney “will tell any lie, violate any rule, break any law, or commit any
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crime necessary to perfect her schemes of fraud and extortion.”
“Fed. R. App. P. 38 and 28 U.S.C. § 1912 provide that a court of appeals may
award just damages and single or double costs if the court determines that an appeal is
frivolous or brought for purposes of delay.” Id. (quotations and alteration omitted).
Although this court may require a higher level of responsibility from members of the bar,
see Stelly v. Comm’r, 761 F.2d 1113, 1116 (5th Cir. 1985) (per curiam), pro se litigants
are subject to the same minimum litigation requirements that bind all litigants and counsel
before all federal courts. We emphasize today that we will scrutinize equally all filings
by both pro se and counseled litigants to protect against the abuses identified in § 1912
and Rule 38. We further emphasize that all litigants must demonstrate a level of civility
in pleadings and proceedings that displays a basic understanding of and respect for the
courts and the rule of law in this nation.
The Government’s motion for sanctions is well-founded, and we grant it $8,000 in
costs.
III. CONCLUSION
The judgment of the District Court is therefore AFFIRMED. The mandate for
sanctions shall issue forthwith. Finally, we deny all Mr. Kyler’s outstanding motions.
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