Gaylor, Annie et al v. Lew, Jacob et al

Filing 102

Transmission of Notice of Appeal, Docketing Statement, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 100 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Judgment, # 3 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN
ANNIE LAURIE GAYLOR; DAN
BARKER; IAN GAYLOR, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
ANNE NICOL GAYLOR; and FREEDOM
FROM RELIGION FOUNDATION, INC.,

)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
STEVEN MNUCHIN, Secretary of the United )
States Department of Treasury; DAVID J.
)
KAUTTER, Acting Commissioner of the
)
Internal Revenue Service;1 and the UNITED
)
STATES OF AMERICA,
)
)
Defendants,
)
)
and
)
)
EDWARD PEECHER; CHICAGO
)
EMBASSY CHURCH; PATRICK
)
MALONE; HOLY CROSS ANGLICAN
)
CHURCH; and THE DIOCESE OF
)
CHICAGO AND MID-AMERICA OF THE
)
RUSSIAN ORTHODOX CHURCH
)
OUTSIDE OF RUSSIA,
)
)
Intervenor-Defendants.
)

Case No. 3:16-cv-00215

DEFENDANTS’ DOCKETING STATEMENT
Pursuant to Circuit Rule of the United States Court of Appeals for the Seventh Circuit
3(c)(1), defendants Steven Mnuchin, Secretary of the United States Department of Treasury,
David J. Kautter, Acting Commissioner of the Internal Revenue Service, and the United States of
America submit this Docketing Statement.
1

Pursuant to Fed. R. Civ. P. 25(d), the current Acting Commissioner of the Internal Revenue Service is substituted
for the former Commissioner, John Koskinen.

I.

Parties Appearing In Their Official Capacities
The Secretary of the Treasury and the Commissioner of Internal Revenue are appearing

in their official capacities. The current occupant of the office of the Secretary of the Treasury is
Steven Mnuchin. The current occupant of the office of the Commissioner of Internal Revenue
(Acting) is David J. Kautter.
II.

Prior Or Related Appellate Proceedings
In 2014, the United States appealed a judgment in a related case from the United States

District Court for the Western District of Wisconsin to the United States Court of Appeals for the
Seventh Circuit.2 Nearly identical plaintiffs challenged the constitutionality of 26 U.S.C.
§ 107(2).3 Because the plaintiffs had not, at that time, personally been denied the benefit of
§ 107(2), the United States argued that the plaintiffs did not have standing to sue and that
§ 107(2) is constitutional. The district court ruled that the plaintiffs did have standing, which
gave the court subject matter jurisdiction, and that § 107(2) was unconstitutional.4 The United
States appealed on both grounds.5 The Seventh Circuit ruled that the plaintiffs lacked standing,
and did not reach the issue of the constitutionality of § 107(2).6 The Seventh Circuit remanded
the case to the district court with instructions to dismiss the complaint for lack of subject matter
jurisdiction.7
In 2009, there was an appeal taken to the United States Court of Appeals for the Ninth
Circuit in a related case that ended before any proceedings in the Western District of Wisconsin

2

Freedom From Religion Foundation, Inc. v. Lew, No. 14-1152 (7th Cir.).
Freedom From Religion Found., Inc. v. Lew, 983 F. Supp. 2d 1051 (W.D. Wis. 2013).
4
Id.
5
Freedom From Religion Found., Inc. v. Lew, 773 F.3d 815, 818 (7th Cir. 2014).
6
Id.
7
Id.
3

began.8 The suit in the Eastern District of California challenged the constitutionality of, among
other statutes, 26 U.S.C. § 107.9 In that suit, a minister who used the exclusion from income in
§ 107 sought to intervene in the proceedings to defend the statute.10 The district court denied his
motion.11 The minister appealed the decision.12
The Ninth Circuit affirmed in part and vacated in part the district court’s decision.13 Soon
thereafter, the United States moved to dismiss the Complaint for lack of jurisdiction.14 The
parties then agreed to voluntarily dismiss the suit,15 and the suit was ordered dismissed16.
Therefore, the district court did not have occasion to implement the mandate of the Ninth
Circuit.17
III.

Jurisdictional Statement
A. District Court’s Subject-Matter Jurisdiction
Here, Plaintiffs challenged the constitutionality of 26 U.S.C. § 107, but were found to

have standing to challenge only § 107(2).18 They invoked the jurisdiction of the District Court
pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1346, 28 U.S.C. § 2201, and 28 U.S.C. § 1343.
Defendants agree that the District Court had subject matter jurisdiction to hear plaintiffs’ claims
under § 107(2).

8

See Freedom From Religion Foundation, Inc. v. Rodgers, No. 09-17753 (9th Cir.); Freedom From Religion
Foundation, Inc. v. Geithner, Civ. No. 2:09-2894 (E.D. Cal.).
9
Geithner, Compl. (Oct. 16, 2009).
10
Id., Mot. to Intervene & Mem. in Supp. (Oct. 22, 2009).
11
Id., Mem. & Order (Dec. 2, 2009).
12
Id., Notice of App. (Dec. 9, 2009).
13
Rodgers, Op. (May 9, 2011).
14
Geithner, Mot. to Dismiss (May 26, 2011).
15
Id., Stipulation & Proposed Order (Jun. 17, 2011).
16
Id., Order Dismissing Case (Jun. 20, 2011).
17
See id., Mandate of USCA (Jul. 5, 2011) (entered after district court case closed).
18
ECF No. 15 at 3-4.

B. Appellate Court’s Subject-Matter Jurisdiction
The District Court entered final judgment on December 15, 2017.19 The District Court’s
order disposes of all of the claims of all of the parties. Defendants filed a timely notice of appeal
in the District Court on February 8, 2018.20 Thus, the Seventh Circuit has jurisdiction to hear this
direct appeal of a final judgment under 28 U.S.C. § 1291 with respect to the claims regarding
§ 107(2).
Dated: February 8, 2018

Respectfully submitted,
RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General
/s/ Erin Healy Gallagher
ERIN HEALY GALLAGHER
District of Columbia Bar Number: 985670
U.S. Department of Justice
Tax Division
Post Office Box 7238
Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
/s/ Richard G. Rose
RICHARD G. ROSE
District of Columbia Bar Number: 493454
U.S. Department of Justice
Tax Division
Post Office Box 7238
Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Defendants

19
20

ECF No. 96.
ECF No. 100; 28 U.S.C. § 2107(b).

CERTIFICATE OF SERVICE
I certify that, on February 8, 2018, service of the foregoing DEFENDANTS’
DOCKETING STATEMENT was made upon all parties by filing it with the Clerk of Court
using the CM/ECF system.

/s/ Erin Healy Gallagher
ERIN HEALY GALLAGHER