Fisher, Cybil v. United States of America et al

Filing 15

ORDER granting 2 Motion to Dismiss; denying 1 Petition to Quash Foreign Subpoenas; denying 8 Motion to Transfer; denying 13 Motion to Stay. Signed by Magistrate Judge Stephen L. Crocker on 2/5/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CYBIL FISHER,
Petitioner

v.
UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE, and
JEFFREY HENCKE, SPECIAL AGENT,

ORDER

13-mc-13-slc

Respondents,
_________________________________________________________________________________________
On July 12, 2013, petitioner Cybil Fisher, proceeding pro se, filed a motion to quash an
administrative summons served by the Internal Revenue Service on “Washington Mutual” in
Madison, Wisconsin, seeking financial and credit card records relating the Fisher. The summons was
dated June 20, 2013 and the return date was set for July 18, 2013 in Green Bay. See dkt. 1-1. Fisher
filed similar motions to quash such IRS summonses directed to third parties in at least eight other
judicial districts, including the Eastern District of Wisconsin, then sought to transfer this case to the
Eastern District (see dkt. 8) as well as all her other cases by seeking a consolidation order from the
Judicial Panel on Multidistrict Litigation; Fisher requested a stay of this court’s proceedings pending
a consolidation decision (see dkt. 13). The respondents have moved to dismiss the petition filed in
this court (see dkt. 2).
On October 7, 2013, the court in the Eastern District of Wisconsin dismissed Fisher’s
petition. See Fisher v. United States, et al., 13-cv-776-WCG, dkt. 10. Accordingly, I am denying
Fisher’s motion to transfer, dkt 8, as moot. Although this court did not receive a copy of the order
entered by the JPMDL, I have learned that on December 13, 2013, the Panel denied Fisher’s motion
for transfer. See In Re: Cybil Fisher Litigation, MDL NO. 2488, dkt. 11. Accordingly, I also am
denying Fisher’s motion to stay (dkt. 13) as moot.

This leaves the government’s motion to dismiss, dkt. 2. The government claims that Fisher’s
petition is barred by the doctrine of sovereign immunity insofar as Fisher failed to file her petition
within the statutorily-created deadline, thus depriving this court of subject matter jurisdiction. In
its brief, dkt. 3, the government notes that pursuant to 26 U.S.C. § 7609(b)(2)(A), the United States
carved out a limited waiver of its sovereign immunity by allowing any person who is entitled to
receive notice of the IRS summons to begin a proceeding to quash the summons not later than the
20th day after the day such notice was given. IRS Special Agent Jeffrey Hencke has submitted a
sworn declaration in which he avers that on June 20, 2013, the same day he sent the summons to
Washington Mutual, he sent a notice of this summons to Cybil Fisher by certified mail, as required
by § 7609(a)(1). Agent Hencke attached to his declaration a photocopy of this certified mailing to
Fisher. See dkt. 3-1. The twentieth day after June 20, 2013, was July 10, 2013. Fisher missed her
filing deadline in this court by two days.
Not so fast, argues Fisher: she put her petition to quash in the mail on July 10, 2013, and
pursuant to F.R.Civ. Pro. 6(d), service is generally considered complete at the time of mailing; further
Rule 6(d) adds three days to her 20-day deadline because the notice was served on her by mail. See
dkt. 11. However, as the government points out in its reply, see dkt. 12, in this circumstance, where
jurisdiction is based on the government’s waiver of its sovereign immunity Fisher is not entitled to
the three extra days she claims. “The case law is clear that a petition that is filed more than twenty
days after the mailing of the summons by the (IRS must be dismissed for lack of jurisdiction.”
Sarnowski v. United States, 2005 WL 4715656 at *2 (E.D. Va. 2002); see also Faber v. United States,
921 F.2d 1118, 1119 (10th Cir. 1990)(§7609 must be construed strictly and the plain language of
the statute says motions to be quash must be filed within twenty days of notice being mailed);
Stringer v. United States, 776 F.2d 274, 275 (11th Cir. 1985)(deadline to challenge is 20 days after the

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notice is mailed, period); Berman v. United States, 264 F.3d 16, 19 (1st Cir. 2001)(Rule 6(e)’s 3-day
mailbox rule does not extend the 20-day limit of § 7609). The bottom line is that Fisher missed the
twenty day deadline. Therefore, her petition to quash is untimely and this court has no jurisdiction
over it.

ORDER
It is ORDERED that:
(1) The government’s motion to dismiss (dkt. 2) is GRANTED; and
(2) Petitioner Cybil Fisher’s motion to quash the summons (dkt. 1),
motion to transfer (dkt. 8), and motion to stay (dkt. 13) all are
DENIED.

Entered this 5 th day of February, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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