United States of America v. Singh

Filing 82

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/2/17 RECOMMENDING that the government's 74 motion for compensatory sanctions be granted and the government be awarded $5,316.92 in attorney's fees and $2,832.69 in costs, for a total award of $8,149.61; Singh's 71 motion to quash be denied; Singh's 79 motion for an order requiring reconsideration of taxes be denied; and the Clerk be directed to close this case. Matter REFERRED to Judge Troy L. Nunley. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Petitioner, 13 14 No. 2:15-cv-287-TLN-EFB PS v. FINDINGS AND RECOMMENDATIONS RAGHVENDRA SINGH, 15 Respondent. 16 17 This petition to enforce an IRS summons is currently before the court on the government’s 18 motion for compensatory sanctions (ECF No. 74) and respondent Raghvendra Singh’s motions to 19 quash the summons (ECF No. 71) and to have his taxes reassessed (ECF No. 79).1 For the 20 following reasons, it is recommended that the government’s motion be granted and Singh’s 21 motions be denied.2 22 I. 23 24 Background On February 4, 2015, the United States filed a petition to enforce an IRS summons. ECF No. 1. According to the petition, Revenue Agent David Palmer was assigned to collect the 25 1 26 27 28 The case is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(9). See 28 U.S.C. § 636(b)(1). 2 The court determined that oral argument would not materially assist in the resolution of the motions, and the matters were ordered submitted on the briefs. See E.D. Cal. 230(g). 1 1 assessed federal income tax liabilities for Mr. Raghvendra Singh and his spouse, Ms. Rawat, for 2 tax years 2008, 2009, and 2010. Id. ¶ 4. Agent Palmer issued an Internal Revenue Service 3 summons directing Singh to appear before the agent to give testimony and produce for 4 examination books, papers, records or other data relevant to Singh and Rawat’s assessed tax 5 liabilities. Id. ¶¶ 5, 8. Singh attended the scheduled hearing before Agent Palmer, but refused to 6 provide any information or testimony. Id. ¶ 11. 7 On July 21, 2015, the court enforced the IRS summons and ordered Singh to appear 8 before Agent Palmer to give testimony and produce documents for examination. ECF No. 32. 9 Singh, however, continued to resist compliance with the IRS summons, which resulted in the 10 court granting the government’s application for an order directing Singh to appear before the 11 court to show cause why he should not be held in contempt for failure to comply with the court’s 12 July 21, 2015 order. 13 After the hearing on the government’s application, the undersigned issued Findings and 14 Certification re: Civil Contempt, finding that Singh was in civil contempt of the court’s July 21, 15 2015 order, and Singh was ordered to appear before the assigned district judge, Judge Nunley, to 16 show cause why he should not be incarcerated for civil contempt until he fully complied with the 17 court’s July 21, 2015 order. ECF No. 48. The undersigned also found that an award of attorney’s 18 fees as a remedial measure was appropriate to compensate the government for Singh’s deliberate 19 disregard, but that the determination of the amount to be awarded should be deferred until after 20 the contempt proceedings concluded. Id. at 9-10. 21 Singh appeared before Judge Nunley on April 7, 2016, ECF No. 54, and was found to be 22 in civil contempt. ECF No. 64. He was ordered remanded into the custody of the United States 23 Marshal until he complied with the court’s order. Singh remained incarcerated until May 5, 2016, 24 at which time he was released at the government’s request to help facilitate complete compliance 25 with the summons. ECF No. 64. On May 19, 2016, the court found that Singh was no longer in 26 contempt. ECF No. 70. 27 28 The government now brings a motion for compensatory sanctions, which seeks $8,149.61 in costs and attorneys’ fees expended by the government in its efforts to secure Singh’s 2 1 compliance with the court’s July 21, 2015 order. ECF No. 74. Also pending are Singh’s motion 2 to quash a summons (ECF No. 71) and motion “for an order requiring reconsideration of Taxes” 3 (ECF No. 79). 4 II. Government’s Motion for Sanctions 5 As previously explained in the Findings and Certification re: Civil Contempt, “[a]n award 6 of attorney’s fees for civil contempt is within the discretion of the district court.” Harcourt Brace 7 Jovanovich Legal & Prof. Pub., Inc. v. Multistate Legal Studies, Inc., 26 F.3d 948, 953 (9th Cir. 8 1994); see also Perry v. O’Donnell, 759 F.2d 702, 704-705 (9th Cir. 1985) (holding that “civil 9 contempt need not be willful to justify a discretionary award of fees and expenses as a remedial 10 measure.”). In determining whether a request for attorney’s fees is reasonable, the court employs 11 the “lodestar” method. Under this method, “a district court must start by determining how many 12 hours were reasonably expended on the litigation, and then multiply those hours by the prevailing 13 local rate for an attorney of the skill required to perform the litigation.” Moreno v. City of 14 Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). “In addition to computing a reasonable 15 number of hours, the district court must determine a reasonable hourly rate to use for attorneys 16 and paralegals in computing the lodestar amount.” Gonzalez v. City of Maywood, 729 F.3d 1196, 17 1205 (9th Cir. 2013). “The Supreme Court has consistently held that reasonable fees ‘are to be 18 calculated according to the prevailing market rates in the relevant community.’” Van Skike v. 19 Dir. Off. Of Workers’ Comp. Programs, 557 F.3d 1041, 1046 (9th Cir. 2009). 20 The government seeks an hourly rate of $189.89 for twenty eight hours of time expended 21 in securing Singh’s compliance with the court’s July 21, 2015 order. In her declaration, Trial 22 Attorney Nithya Senra of the Tax Division of the United States Department of Justice explains 23 that she spent one hour drafting a letter to Singh regarding his failure to comply with the court’s 24 order; six hours preparing the government’s Request for Entry of Order to Show Cause and four 25 hours drafting a reply brief; one hour preparing for and attending the hearing on March 16, 2016; 26 three hours drafting a response to various pleadings filed by Singh in which he argued that he had 27 purged himself of contempt; one hour preparing for and attending the April 7, 2016 hearing 28 before Judge Nunley; six hours preparing three status reports, which detailed the government’s 3 1 efforts to obtain Singh’s compliance while he was imprisoned; and three hours preparing for and 2 attending a May 5 status conference and another 3 hours preparing for and attending a May 19 3 status conference. Declaration of Nithya Senra (ECF No. 73). 4 The hours expended in completing the above tasks were necessary to obtain Singh’s 5 compliance with the court’s order enforcing the IRS’s summons. Indeed, had Singh initially 6 complied with the court’s order, none of the tasks would have been necessary. Accordingly, the 7 court finds reasonable the number of hours expended by Ms. Senra. 8 Moreover, the government only seeks the adjusted hourly rate under the Equal Access to 9 Justice Act, which is $189.89 for work performed in 2015. This amount is reasonable for work 10 performed in this district by an attorney with similar experience to that possessed by Ms. Senra, 11 who has been employed by the Tax Division of the United States Department of Justice since 12 October 2013. See ECF No. 73; see, e.g., Gauchat-Hargis v. Forest River, Inc., 2013 WL 13 4828594, at *10 (E.D. Cal. Sep. 9, 2013) (finding a rate of $200 per hour reasonable for a junior 14 associate); Lee-Tzu v. Dignity Health-Methodist Hosp. of Sacramento, 2014 WL 5698448, at *3 15 (E.D. Cal. Nov. 4, 2014) (finding hourly rate of $200 reasonable for an attorney with 16 approximately 2 years of experience). Accordingly, the government should be awarded 17 $5,316.92 in attorney’s fees. 18 The government also seeks $2,832.69 in costs associated with attending hearings on 19 March 16, April 7, May 5, and May 19, 2016. The expenses for attending these hearings include 20 airfare, rental car/taxi fee, fuel, parking, lodging, and meals and incidentals. See ECF No. 73-1. 21 Such expenses are reimbursable as costs. See, e.g., Gibbs v. River Transp. Group, Inc., 2014 WL 22 204928, at *4 (D. Nev. Jan. 17, 2014) (awarding government costs for travel, lodging, and meals 23 and incidental expenses). Not only were these costs reasonably expended, they were necessitated 24 by Singh’s disregard of the court’s order enforcing the IRS’s summons. Therefore, the 25 government should also be awarded costs in the amount of $2,832.69, for a total award of 26 $8,149.61.3 27 28 3 Singh does not challenge the reasonableness of the requested fees. Instead, in a hyperbole filled opposition—which the court has become accustomed to receiving from Singh— 4 1 III. 2 Singh’s Motion to Quash Singh filed a “Motion to Quash Summons,” which argues that the “IRS should not issue 3 summons again and again for the same information which is already provided . . . .” ECF No. 71. 4 But another summons has not been issued. The government explains that the summons at issue in 5 this action has already been enforced, and thus it is not clear what relief Singh’s motion seeks. 6 ECF No. 75 at 1. 7 Singh did not submit a copy of the purported summons he seeks to quash, and the court 8 has already determined that he has now, sufficiently but belatedly complied with the IRS’s 9 summons to purge his contempt. As Singh has failed to demonstrate any basis for quashing a 10 summons, his motion must be denied. 11 IV. 12 Singh’s Motion to Reconsider Tax Assessment Singh also filed a motion entitled “Motion for an order requiring reconsideration of 13 Taxes.” ECF No. 79. In his motion Singh argues that the IRS is attempting to collect $500,000 14 in tax liabilities from him, and that reconsideration of his tax liabilities is necessary to show that 15 he owes a lesser amount. Id. at 1. 16 This is not Singh’s first attempt to litigate his tax liabilities in this court. He previously 17 filed an action in this court against the United States of America, seeking to challenge the IRS’s 18 assessment of his tax liabilities for multiple years. See Singh v. United States, 2:13-cv-780-TLN- 19 EFB PS, ECF No. 36 (First Am. Compl.). In that case, Singh’s claims were dismissed as barred 20 by the Anti-Injunction Act. Id., ECF Nos. 73, 84. 21 As was previously explained to Singh, “[a]ctions to enjoin the assessment of taxes by the 22 IRS are narrowly limited by the Anti-Injunction Act.” Elias v. Connett, 908 F.2d 521, 523 (9th 23 Cir. 1990). The Anti-Injunction Act provides that “no suit for the purpose of restraining the 24 assessment or collection of any tax shall be maintained in any court by any person, whether or not 25 such person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). Where the 26 plaintiff’s claims are barred by the Anti-Injunction Act, the court is without jurisdiction to hear 27 28 he argues that the contempt proceedings were illegal. ECF No. 77. Singh, however, fails to demonstrate any error by this court. 5 1 the plaintiff’s claims or grant relief. Life Science Church v. Internal Revenue Service, 525 F. 2 Supp. 399, 404 (N.D. Cal. 1981). 3 As Singh by now should know, this court is without jurisdiction to order the IRS to 4 reassess his taxes. Accordingly, Singh’s motion must be denied. 5 V. Conclusion 6 Accordingly, it is hereby RECOMMENDED that: 7 1. The government’s motion for compensatory sanctions (ECF No. 74) be granted and the 8 government be awarded $5,316.92 in attorney’s fees and $2,832.69 in costs, for a total award of 9 $8,149.61. 10 2. Singh’s motion to quash (ECF No. 71) be denied; 11 3. Singh’s motion for an order requiring reconsideration of taxes (ECF No. 79) be denied; 12 and 13 4. The Clerk be directed to close this case. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 within the specified time may waive the right to appeal the District Court’s order. Turner v. 20 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: March 2, 2017. 22 23 24 25 26 27 28 6

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