In Uncategorized on 12/21/2018 at 15:31

Even Though He Says He Isn’t

It’s no secret that I am a fan of That Obliging Jurist Judge David Gustafson. I’m a fan even when he conflates “discrete” (meaning “separate, distinct”) with “discreet” (meaning “careful, circumspect”). I’m a fan even when gritting my teeth as he perpetrates a solecism like “no more than a couple dozen simple and direct factual assertions.,” Judith Lee Alston, Docket No. 10936-18L, filed 12/21/18.

Have you been lunching with Judge Holmes again, Judge Gustafson?

The above-cited designated hitter is a gem. Judith Lee is a pro se who has never yet appeared in court; IRS’ counsel from the OCC (Office of Chief Counsel, around the corner from my old office) is an NYU law alum who has ten years in, and is clearly a pro. So Judith Lee is playing against the varsity.

And IRS makes the right move, seeking summary J early, so that unnecessary trial prep can be avoided. Summary J is discovery on steroids; that’s why I love it. Summary J makes you think out your own case, smoke out your adversary’s, and suss out what the Judge thinks of it all.

Judge Gustafson, though, pities the poor pro se: “However, the majority of Tax Court petitioners are self-represented, and most of them do not yet understand summary judgment procedure and do not yet know what their obligations are as non-movants under Rule 121. Having never seen the petitioner in open court, the Court usually does not yet not know the background, education, and experience of the petitioner at the time the Commissioner files a motion for summary judgment. In order for the Court to be sure that the use of summary judgment procedures is fair to the self-represented petitioner, we need to be confident that the petitioner can be enabled to respond appropriately. The undersigned judge usually attempts to accomplish that goal by issuing an order that explains the summary judgment process and directs the self-represented non-movant to make a filing that responds to the facts (in paragraphs such-and such) and to the legal argument (in paragraphs so-and-so). This system accomplishes the goal only imperfectly; and we would be pleased to learn of better ways of accomplishing that goal; but that is our goal.“ Order, at pp. 1-2.

Judge, I wish I could help. But I can only quote helplessly the English Lord Chief Justice Campbell, writing in 1850: “There is nothing so dangerous as for one not of the craft to tamper with our freemasonry.”

Commendably, IRS’ counsel has tried to help, making an outline with specific, appropriate captions, setting forth facts with apposite reference to the administrative record and the declarations supporting the motion, and generally complying with Rule 121.

The problem comes with 89 (count ‘em, 89) paragraphs. “However, the 89-paragraph motion thereafter gives what appears to us to be a blend of (a) factual assertions, (b) factual rebuttal of anticipated possible counter-assertions, and (c) legal argument. We think that it would be difficult for a nonlawyer to respond effectively to this motion, and that this motion may not be likely to result in clarity about the parties’ actual disputes.” Order, at p. 3.

I ask my colleagues to read what Judge Gustafson says at p. 3, and see how they would deal with such a kitchen-sink summary J motion. I’d go back to my old State court apprenticeship, when we were taught that summary J motions were the facts and the papers, and legal argument was for your memo of law or brief.

So Judge Gustafson denies summary J without prejudice to renewal, giving IRS’ counsel (and the rest of us) some handy hints and kinks.

“We think it is helpful when (after a short preamble) a motion for summary judgment filed against a self-represented petitioner begins with a factual section that consists of, if possible, no more than a couple [of] dozen simple and direct factual assertions. We can then point the petitioner to those factual assertions, instruct her to respond, and learn whether there is any ‘genuine dispute as to any material fact’. Rule 121(b). Where, from knowledge of the case and of the petitioner, counsel anticipates the possible raising of non-’genuine’ factual disputes, it may well be appropriate to address those–but presumably as legal argument (i.e., arguing that as a matter of law petitioner fails to raise a ‘genuine dispute’) in the later section of the brief devoted to legal argument. Of course, a movant may also later file a reply to the non-movant’s response, and the reply may be the most efficient occasion to address such issues.” Order, at pp. 2-3 (emphasis added).

And finally, this is why I’m a fan of Judge David Gustafson: “We acknowledge that it is not the Court’s responsibility or role to instruct counsel how to prepare filings. But we do have the responsibility of assuring a process that is understandable and fair to the self-represented petitioner. We do not know how to assure such fairness in an order directing petitioner to respond to the instant motion.” Order, at p. 3.

So, Judith Lee, you don’t need to answer this motion. But read it and see where IRS is going, because you’ll need to deal with this, either in a subsequent motion or at trial.

Edited to add, 7/19/19: Judith Lee didn’t. Alas, Judge Gustafson blushed unseen, and suffered the fate Tommy Grey’s elegy predicted for “full many a flower.” Judith Lee Alston, Docket No. 10936-18L, filed 7/19/19

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