no. 12-56358 in the united states court of...

No. 12-56358

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

BRIAN KENNER; KATHLEEN KENNER,Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA, DOES, 1-50 inclusive, et al.,Defendants-Appellees.

ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE UNITED STATESAS APPELLEE

KATHRYN KENEALLY Assistant Attorney GeneralBRIDGET M. ROWAN (202) 514-1840GRETCHEN M. WOLFINGER (202) 616-7611 Attorneys Tax Division, Department of Justice Post Office Box 502 Washington, D.C. 20044

Of Counsel: LAURA E. DUFFY United States Attorney

Case: 12-56358 11/27/2012 ID: 8415869 DktEntry: 14 Page: 1 of 50

TABLE OF CONTENTS

Page

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ivGlossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viiStatement of subject matter and appellate jurisdiction. . . . . . . . . . . . . 1

A. District Court jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Appellate jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Statement of the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Statement of facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Overview of the Kenners’ District Court damages actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Previous District Court litigation. . . . . . . . . . . . . . . . . 7

a. Kenner v. Kelly et al. (S.D. Cal. No. 3:10-cv-2105) (Kenner I or RICO lawsuit). . . . . . . . . . . . . . . . . 7

b. Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-1538) (Kenner II). . . . . . . 8

2. The instant District Court litigation, Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-2520) (Kenner III). . . . . . . . . . . 9

B. The proceedings in District Court in the instant case. . . . . 12

1. Substitution of the United States as defendant. . . . . 12


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Page

2. The United States filed a motion to dismiss. . . . . . . . 13

3. The District Court granted the motion to dismiss. . . 16

Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Argument:

The District Court correctly granted the Government’s motion to dismiss for lack of jurisdiction under the Federal Tort Claims Act, after correctly substituting the United States for the individual IRS defendants. . . . . . . . . . . . . 23

Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. The Kenners did not file an administrative claim. . . . . . . . 24

B. The “tax exception” to the FTCA bars the Kenners’ suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. The Kenners’ allegations are otherwise without merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1. Service of notice of substitution.. . . . . . . . . . . . . . . . . 30

2. Substitution of the United States as defendant. . . . . 31

3. The Kenners’ miscellaneous arguments. . . . . . . . . . . 33

D. The IRS’s alternative arguments also provide a basis for dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

1. The complaint fails to state a claim upon which relief may be granted.. . . . . . . . . . . . . . . . . . . . . . . . . 36


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Page

2. The United States was not properly served. . . . . . . . 38

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39Statement of related cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Certificate of service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42


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TABLE OF AUTHORITIES

Cases: Page(s)

Alaska Center for Environment v. United States Forest Service, 189 F.3d 851 (9th Cir. 1999). . . . . . . . . 23-24

Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . 36Atel Financial Corp. v. Quaker Coal Co.,

321 F.3d 924 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 35Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . 36Brown. v. Kennard, 94 Cal. App. 4th 40,

113 Cal. Rptr. 2d 891 (2001). . . . . . . . . . . . . . . . . . . . . . . . . 37Chappel v. Laboratory Corp. of America,

232 F.3d 719 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . 34-35Direct Mail Specialists, Inc. v. Eclat Computerized

Technologies, Inc., 840 F.2d 685 (9th Cir. 1988). . . . . . . . . 38Entertainment Research Group, Inc. v. Genesis

Creative Group, Inc., 122 F.3d 1211 (9th Cir. 1997). . . . . . 29Green v. Hall, 8 F.3d 695 (9th Cir.1993). . . . . . . . . . . . . . . . . . . . 33Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994). . . . . . . . . . . . . . 30Hillis v. Heineman, 626 F.3d 1014 (9th Cir. 2010). . . . . . . . . . . . 34Kenner v. Holder et al. (S.D. Cal. No. 3:12-cv-1011) . . . . . . . . . . 12Kenner v. Kelly et al. (9th Cir. No. 11-56062). . . . . . . . . . . . . . . 2, 7Kenner v. Kelly et al. (S.D. Cal. No. 3:10-cv-2105). . . . . . . . . . . 7-8Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-1538). . . . . . . . . . . 8-9Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-2520). . . . . . . . . . 9-12Landham v. Taylor, 68 Fed. Appx. 608 (6th Cir. 2003). . . . . . . . 34Meridian International Logistics, Inc. v. United States,

939 F.2d 740 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 24, 25Orsay v. United States Department of Justice,

289 F.3d 1125 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 25Osborn v. Haley, 549 U.S. 225 (2007). . . . . . . . . . . . . . . . . . . . . . 33United States v. Williamson, 439 F.3d 1125 (9th Cir. 2006).. . . . 29Valadez-Lopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011). . . . . . . 24Viewtech, Inc. v. United States, 653 F.3d 1102 (9th Cir. 2011). . 23


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Page(s)

Constitution and Statutes:

U.S. Constitution:

Amendment I ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 34Amendment V ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 34

18 U.S.C. § 1961 et. seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Internal Revenue Code (26 U.S.C.) § 7433. . . . . . 20, 22, 28, 33, 34

28 U.S.C.:

§ 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4§ 1346(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3§ 2671.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3§ 2675.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4§ 2675(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 24, 35§ 2679(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22, 32§ 2679(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17§ 2679(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22, 33§ 2679(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21-22, 33§ 2680(c).. . . . . . . . . . . . . . . . . . . . 4, 14, 17, 19, 25, 27-28, 35§ 2680(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 28-29

Miscellaneous: Page(s)

California Civil Code:

§ 52.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10§ 52.1(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Federal Rule of Appellate Procedure 4(a)(1)(B). . . . . . . . . . . . . . . 4


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Miscellaneous(cont’d): Page(s)

Federal Rules of Civil Procedure

Rule 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 38Rule 4(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Rule 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14, 23Rule 12(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14Rule 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14


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GLOSSARY

FTCA Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

RICO Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.


IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

No. 12-56358

BRIAN KENNER; KATHLEEN KENNER,

Plaintiffs-Appellants,v.

UNITED STATES OF AMERICA, DOES, 1-50 inclusive, et al.,

Defendants-Appellees.

ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE UNITED STATESAS APPELLEE

STATEMENT OF SUBJECT MATTER ANDAPPELLATE JURISDICTION

This appeal arises from the third lawsuit appellants Brian

Kenner and his wife Kathleen (Kenners) have filed seeking damages

and naming employees of the Internal Revenue Service (IRS) and

others as defendants. The Kenners appear to have filed the lawsuits in

an effort to thwart collection of their outstanding multi-million dollar


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As discussed in more detail below, an appeal in the Kenners’1

RICO suit against various IRS employees, among others, is pendingbefore this Court. Kenner v. Kelly et al. (9th Cir. No. 11-56062).

income tax liabilities, as well as to hold the IRS employees involved in

the collection of those unpaid liabilities personally liable for the alleged

damages. The lawsuits have their genesis in the Kenners’ objection to

the payment of a lawsuit’s settlement proceeds to the IRS with respect

to their outstanding tax liabilities, and the IRS’s return of the Kenners’

offer in compromise. 1

A. District Court jurisdiction

In October 2011, the Kenners filed a complaint in San Diego

Superior Court seeking damages against IRS employees Erin Kelly,

Jennifer Plasky, Carol Rose, Mary K. Pittner, C. John Crawford,

Patricia Blizzard, Charlotte A. Becerra, Sylvia L. Shaughnessy, David

Alito, and Mindy Meigs; Capital One; federal District Judges Anthony

Battaglia and Barry Moskowitz, in their official capacities (federal


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Capital One and the federal judges have separate2

representation, with the United States Attorney’s Office for theSouthern District of California representing the judges.

References used in this brief are: “Br.” (appellants’ brief), “Doc.”3

(documents comprising the original record of the case as numbered bythe clerk of the District Court), and “SER” (United States’supplemental excerpts of record).

judges); and Does 1-50. (SER 5-31.) The complaint alleged violations2 3

of, and conspiracy to violate, California state law, as well as abuse of

process, conversion, and interference with economic relationships. (Id.)

The United States and the IRS employees filed a notice of

removal to federal district court. (SER 1-4.) Subsequently, in response

to the Government’s notification that the complaint contained common

law tort claims against the individual IRS defendants for actions taken

within the scope of their official duties, the District Court ordered that

the United States be substituted as the defendant in place of the IRS

employees, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671 et seq. (SER 32-33.)

The District Court then determined, correctly, that it lacked

subject matter jurisdiction over the claims relating to the United


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States. The court determined that, pursuant to the FTCA (28 U.S.C.

§ 2675), the Kenners had failed to exhaust their administrative

remedies and, further, that suit was barred under the “tax collection”

exception to the FTCA (28 U.S.C. § 2680(c)).

B. Appellate jurisdiction

On June 20, 2012, the District Court granted the Government’s

motion to dismiss for, inter alia, lack of jurisdiction under the FTCA

(Doc. 35, SER 34-37), and entered judgment for the United States on

June 29, 2012 (SER 38). Previously, the District Court had granted the

motions to dismiss filed by the federal judges (Doc. 31) and Capital One

(Doc. 36). Thus, the judgment is final and appealable, the District

Court having disposed of all claims of all parties.

On July 20, 2012, the Kenners filed a timely notice of appeal.

Fed. R. App. P. 4(a)(1)(B). (SER 39-40.) This Court has jurisdiction

pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the District Court correctly substituted the United

States for the individual IRS employee defendants.


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Case No. 37-2011-00070473.4

Initially, the IRS employees filed a motion to dismiss. (Doc. 15.) 5

Upon ordering that the United States be substituted as the defendantin place of the IRS employees (SER 32-33), the District Court deniedthe IRS employees’ motion as moot (Doc. 30).

2. Whether the District Court correctly granted the motion of the

United States to dismiss because the court lacked subject matter

jurisdiction over the United States pursuant to the Federal Tort Claims

Act (FTCA).

STATEMENT OF THE CASE

In October 2011, the Kenners filed a complaint in the Superior

Court of the State of California seeking damages against several IRS

employees, Capital One, and federal judges. (SER 5-31.) The United4

States and the IRS employees filed a notice of removal to federal

district court. (SER 1-4.) Subsequently, the District Court ordered

that the United States be substituted as the defendant in place of the

IRS employees. (SER 32-33.)

The United States thereupon filed a motion to dismiss pursuant5

to Federal Rules of Civil Procedure 12(b)(1), (b)(5), and (b)(6). (Doc. 35.)


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The Government contended that the District Court lacked subject

matter jurisdiction over the common law tort claims because the

Kenners had not demonstrated a waiver of sovereign immunity. (Id. at

5-7.) In addition, the Government noted that the FTCA is the exclusive

remedy for common law torts committed by federal employees acting

within the scope of their authority, and that the United States is the

defendant in such a suit. The Government maintained that, pursuant

to the FTCA, suit was barred because the Kenners had failed to file an

administrative claim and because suit was barred under the “tax

exception” to the FTCA. (Id. at 7-8.) The Government further alleged

that the Kenners had failed to state a claim upon which relief may be

granted. (Id. at 7-13.) Finally, the Government alleged that it had not

been properly served. (Id. at 14.) The Kenners opposed the motion

(Doc. 41), and the United States filed a reply (Doc. 42).

On June 20, 2012, the District Court granted the Government’s

motion to dismiss (SER 34-37), and entered judgment accordingly on

June 29, 2012 (SER 38).


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STATEMENT OF FACTS

As a result of the Kenners’ several lawsuits regarding their tax

liabilities, this appeal arises in the context of a complicated factual and

procedural background, which is briefly described below.

A. Overview of the Kenners’ District Court damagesactions

1. Previous District Court litigation

The Kenners filed two previous lawsuits against the IRS

employees and others seeking to hold the defendants personally liable

for “damages” based on various theories involving the Racketeer

Influenced and Corrupt Organizations Act, common law torts, and

conspiracy theories.

a. Kenner v. Kelly et al. (S.D. Cal. No. 3:10-cv-2105) (Kenner I orRICO lawsuit)

In October 2010, the Kenners filed a complaint pursuant to the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§ 1961 et seq., seeking, inter alia, $64.5 million in treble damages and

attorneys’ fees and expenses from the IRS employees. The suit also

named Barbara Dunn and Lacy Dunn and Do, a professional


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corporation, and Does 1-25. As noted above, the basis for the complaint

was the Kenners’ objection to the payment of a lawsuit’s settlement

proceeds to the IRS with respect to their tax liabilities, and the IRS’s

return of the Kenners’ offer in compromise. The case was originally

assigned to Judge Moskowitz, but later was transferred to Judge

Battaglia, who were, thus, both named as defendants in the instant

suit. (See Br. 3-4.)

The IRS employees filed a motion to dismiss. In May 2011, Judge

Battaglia issued an order granting the motion. The Kenners’ appeal is

pending before this Court. Kenner v. Kelly et al. (No. 11-56062).

b. Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-1538) (Kenner II)

In July 2011, the Kenners filed a second action in the District

Court. The complaint in that case was essentially identical to their

previous RICO complaint, Kenner I. The Kenners also requested a

temporary restraining order (TRO) against the IRS employees, and

filed an Ex Parte Motion for Approval of Plaintiffs’ Lis Pendens’ Notice.


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In August 2011, Judge Battaglia denied the Kenners’ TRO

motion, issued an order signing the Kenners’ Notice of Lis Pendens,

and stayed the case pending resolution of the appeal in Kenner I.

2. The instant District Court litigation, Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-2520) (Kenner III)

On October 11, 2011, the Kenners filed the instant complaint in

the Superior Court of the State of California naming IRS employees in

their individual capacities, Capital One, and federal District Judges

Anthony Battaglia and Barry Moskowitz. The case was removed to the

federal District Court on October 31, 2011. The complaint alleged that

the “presiding Federal Court has acted with the defendant parties as

conspirators to defeat the RICO lawsuits. The presiding Federal Court

and its conspirators have used threats, intimidation, and coercion to

force KENNER to abandon their rights.” (SER 8.)

Although the complaint is somewhat difficult to decipher, it

appeared to assert 14 causes of action, nine of which were alleged

against the IRS employees. These were:


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(1) the Second Cause of Action, conspiring with Judge Moskowitz

to violate California Civil Code § 52.1 (the Bane Act), by preventing the

Kenners from pursuing a RICO claim (SER 10-12);

(2) the Fourth Cause of Action, conspiring with Judge Battaglia

and Capital One to violate the Bane Act, by preventing the Kenners

from pursuing an appeal of the Judge’s “flawed” RICO dismissal (SER

15-17);

(3) the Fifth Cause of Action, violation of the Bane Act, by

attempting to prevent the Kenners from pursuing their appeal of the

RICO dismissal (SER 17-18);

(4) the Seventh Cause of Action, conspiring with Judge Moskowitz

“to a violation of Abuse of Process,” by furthering the Judge’s attempts

to dismiss the RICO complaint (SER 19-20);

(5) the Ninth Cause of Action, conspiring with Judge Battaglia

and Capital One to violate abuse of process, by improperly forcing the

Kenners to “quit” their RICO lawsuit and abandon their appeal (SER

21-22);


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(6) the Tenth Cause of Action, abuse of process, by “defeat[ing]”

the Kenners’ offer in compromise and unlawfully obtaining settlement

funds from a Kenner lawsuit (SER 22-27);

(7) the Eleventh Cause of Action, abuse of process, by “defeat[ing]”

the Kenners’ RICO lawsuit and the appeal, and by willfully misusing

the IRS to attempt an illegal seizure of the Kenners’ assets (SER 27-

28);

(8) the Thirteenth Cause of Action, conspiring with Capital One

“for a violation of Conversion” of the Kenners’ (unidentified) real

property (SER 29-30); and

(9) the Fourteenth Cause of Action, interfering with economic

relationships together with Capital One, by willfully acting to seize or

disrupt the Kenners in their business “run . . . off[]” the Kenner Horse

Ranch (SER 30).

The Kenners sought damages in the amounts of $64.5 million (the

same treble damages they sought in Kenner I) for the second, fourth,

fifth, seventh, ninth and eleventh causes of action (SER 12, 13, 14, 16,

22, 28); $19.02 million for the tenth cause of action (SER 27); $2.5


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On April 25, 2012, the Kenners filed a fourth lawsuit, which did6

not name IRS employees, but rather named Attorney General Holder,among others. This complaint alleges that the dismissals in theprevious three cases, discussed above, violated the Kenners’ First andFifth Amendment rights. Kenner v. Holder, et al. (S.D.Cal. No. 3:12-cv-1011).

million for the thirteenth cause of action (SER 30); and $500,000 for the

fourteenth cause of action (SER 30). 6

B. The proceedings in District Court in the instant case

1. Substitution of the United States as defendant

As noted above, the IRS employees initially filed a motion to

dismiss. (Doc. 15.) Subsequently, however, the United States,

pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679(d),

notified the District Court that it should be substituted for the IRS

employees for all common law tort claims alleged against the

employees. (Doc. 21.) As explained in that notice, the FTCA provides

that a suit against the United States is the exclusive remedy for

damages claims resulting from the negligent or wrongful actions of

federal employees taken within the scope of their employment. The

United States provided a Certificate of Scope of Employment verifying


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The District Court therefore denied the IRS employees’ motion7

to dismiss as moot. (Doc. 30.) The Kenners did not move forreconsideration of the substitution order.

that the IRS employees were acting within the scope of their

employment with regard to the events described in the Kenners’

complaint. Accordingly, because the tort claims were properly deemed

an action under the FTCA, the United States maintained that it should

be substituted as a defendant in place of the IRS employees. The

Kenners did not challenge the substitution.

The District Court issued an order to substitute the United States

as the defendant in place of the IRS employees. (SER 32-33.) The

court concluded that the complaint contained common law tort claims

arising from actions taken by the employees within the scope of their

employment– specifically the second, fourth, fifth, seventh, ninth,

tenth, eleventh, thirteenth, and fourteenth causes of action.

Accordingly, as to the individual defendants, the court dismissed those

causes of action with prejudice, pursuant to 28 U.S.C. § 2679(d)(2). 7

(SER 33.)


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2. The United States filed a motion to dismiss

Subsequently, the United States filed a motion to dismiss,

pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(5), and (b)(6).

(Doc. 35.) The Government argued that the District Court generally

lacked subject matter jurisdiction because the Kenners had cited no

federal statutes in the complaint (or other authority) that established a

waiver of sovereign immunity. (Id. at 5-7.) Further, in seeking tort

damages against the United States, pursuant to the FTCA, 28 U.S.C.

§ 2675(a), a plaintiff must exhaust his administrative remedies by first

filing a claim with the relevant agency prior to filing suit, something

the Kenners did not do. Even if they had filed such a claim, the

Government maintained that the court would lack jurisdiction under

the exception to the FTCA that bars suit on any claim arising from the

assessment or collection of taxes. 28 U.S.C. § 2680(c). (Id. at 7-8.)

The Government also alleged that the complaint failed to state a

claim upon which relief may be granted because the Kenners’ claims

were not pleaded with particularity or specificity, but, instead,

consisted of conclusory and group-oriented allegations that did not


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establish the elements of the causes of action that were pleaded. (Doc.

35 at 8-13.) Finally, the Government asserted that it had not been

properly served. (Id. at 14-15.)

The Kenners opposed the motion. (Doc. 41.) The opposition

included general charges of “Systemic lawlessness.” (Id. at 3.) The

Kenners also alleged that they were not served with the notice of

substitution until January 17, 2012, after the District Court had acted

on the notice. In support of this allegation, the Kenners produced an

envelope sent from the Department of Justice to them that was

postmarked January 17. (Id.)

The Kenners further argued that the Government’s position on

sovereign immunity was inconsistent, in that the United States claimed

that suit could be brought under the FTCA, but that suit was barred

under an exception. Apparently, for this reason, they contended that

the United States should not have been substituted as the defendant.

(Doc. 41 at 4-6.) In addition, the Kenners maintained that they had

sufficiently pleaded the elements of a Bane Act violation and their

other causes of action. (Doc. 41 at 6-10.)


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The United States filed a reply. (Doc. 42.) The Government

stated that the Kenners had been properly served with a copy of all

filings, including the notice of substitution, which was served on

January 5, 2012. The Government explained that two separate

mailings were made to the Kenners during that time-frame – the notice

of substitution and the reply to the Kenners’ opposition to the

individual defendants’ motion to dismiss. A copy of the reply to the

Kenners’ opposition to the motion to dismiss had been placed in the

mail on January 13, 2012, but because of a federal holiday it likely was

not postmarked until January 17, 2012. (Id. at 5.)

3. The District Court granted the motion to dismiss

The District Court granted the Government’s motion, and

dismissed all of the claims against the United States with prejudice.

(SER 34-37.) The court began its opinion by noting that the United

States was the proper party defendant, but that it could not be sued

without a waiver of sovereign immunity. (SER 35.) The court observed

that although the FTCA was the exclusive remedy for damages claims

resulting from the negligent or wrongful actions of federal employees


-17-

taken within the scope of their employment, it contained limitations

and exceptions. One of the limitations on suit was the requirement

that the plaintiff file an administrative claim with the agency, which,

the court stated, there was no record that the Kenners had done. (SER

36.) Further, the court noted that the FTCA does not extend to any

claim arising out of the assessment or collection of taxes. 28 U.S.C.

§ 2680(c). The court held that the tax exception to the FTCA applied

here. (Id.)

The District Court rejected the Kenners’ arguments made in

opposition. The court stated that the United States was properly

substituted as the defendant under 28 U.S.C. § 2679(d). Next, the

court stated that, although the Kenners had filed an appeal of the

substitution order (No. 12-55287), this Court had held that the order

was not a final order and thus was not appealable at that time.

Finally, the court rejected the Kenners’ contention that they had not

received notice of the notice of substitution, upon determining that the

document that was mailed to the Kenners on January 17, 2012, was not


-18-

the certification of scope of employment, but the Government’s reply to

the Kenners’ opposition to the dismissal motion. (SER 36-37.)

The court concluded that it lacked jurisdiction over the Kenners’

claims. Consequently, as this conclusion was dispositive, it did not

address the Government’s other arguments. (SER 37.)

This appeal by the Kenners followed.

SUMMARY OF ARGUMENT

1. The District Court correctly granted the Government’s motion

to dismiss because the court lacked subject matter jurisdiction

pursuant to the FTCA. On appeal, the Kenners have not challenged

the District Court’s conclusion that it lacked jurisdiction because they

failed to file an administrative complaint, and this Court could affirm

on this basis alone. In any event, the District Court’s decision was

correct.

To pursue a valid claim under the FTCA, a plaintiff must first file

an administrative claim with the relevant agency. 28 U.S.C. § 2675(a).

There is no evidence that the Kenners filed an administrative claim

with regard to their claims against the IRS employees, and they do not


-19-

maintain that they did. Accordingly, the District Court correctly

dismissed the complaint.

Even if the Kenners had filed an administrative claim, suit would

be barred under the exception to the FTCA that makes the Act

inapplicable to any claim arising with respect to the assessment or

collection of taxes. 28 U.S.C. § 2680(c). This exception is jurisdictional

as well.

The Kenners’ claims against the individual IRS defendants arise

with respect to the assessment and collection of their unpaid federal

tax liabilities. Their current complaint is grounded in the dismissal of

their RICO lawsuit (Kenner I), which complained of the payment of a

lawsuit’s settlement proceeds to the IRS with respect to the Kenners’

tax liabilities, and the IRS’s return of the Kenners’ offer in compromise.

The complaint also references alleged attempts by the IRS to “seize”

the Kenners’ assets, apparently to satisfy their outstanding tax

liabilities. The activity thus clearly falls within the scope of the tax

exception to the FTCA.


-20-

The Kenners argument on this issue, to the extent that it is

comprehensible, is that the Government purportedly contended that

claims regarding improper tax collection activity are actionable under

26 U.S.C. § 7433, not the FTCA. Because, according to the Kenners,

their abuse-of-process claim does not relate to collection activity or “a

Title 26 statute,” dismissal of the abuse-of-process claims was error.

The Kenners’ argument is meritless. Although they may have labeled

their claims as ones for abuse of process, the claims, in fact, related to

tax assessment and collection. Further, claims of abuse of process also

are exempt from coverage under the FTCA. 28 U.S.C. § 2680(h).

2. The Kenners make numerous claims in their brief with regard

to the IRS employees. However, the mere mention of an issue,

unsupported by an argument and supporting authorities, is not

sufficient to present these issues for review. In any event, the

arguments, to the extent they can be deciphered, are without merit.

The Kenners claim that the District Court substituted the United

States as defendant without proper notice to them; i.e., they maintain

that the notice of substitution was served on January 17, 2012, not on


-21-

January 5, 2012. The District Court correctly determined that the

document that the Kenners were mailed on January 17, 2012, was the

Government’s reply to the Kenners’ opposition to the individual IRS

defendants’ motion to dismiss, and that the Kenners timely received

notice of the substitution. In any event, once the Kenners received the

order of substitution, they did not move for reconsideration of the

court’s order.

Thus, before the District Court, and on appeal, the Kenners claim

that the substitution of the United States as defendant was improper

and unlawful. But the substitution of the United States for the

individual IRS employees was entirely appropriate. The District Court

correctly concluded that the Kenners were alleging common law tort

claims – such as abuse of process and conversion – against the

individual IRS defendants, and that those employees had been certified

as acting within the scope of their employment. Federal employees

receive absolute immunity from common law tort claims arising out of

acts they undertake “while acting within the scope of [their] office or

employment,” as certified by the Attorney General. 28 U.S.C.


-22-

§ 2679(b)(1),(d)(1), (d)(2). The Kenners did not challenge the scope of

certification in the District Court by asking for reconsideration of the

court’s substitution order, and thus the certification is conclusive.

The Kenners further appear to argue that because 26 U.S.C.

§ 7433 and the FTCA provide for recovery of damages from the United

States, thereby protecting the individual IRS employees from personal

liability, they should be permitted to bring their RICO lawsuit. In

addition, they request that this Court declare as unconstitutional

certain provisions of the FTCA and 26 U.S.C. § 7433, allegedly because

those provisions violate the First and Fifth Amendments of the

Constitution.

First, the viability of the Kenners’ RICO lawsuit is at issue in the

pending appeal of that lawsuit, not the instant appeal. Second, because

the Kenners did not raise their constitutional argument below, it is

waived. At all events, the constitutional argument is meritless.

Finally, although the District Court did not address the

Government’s alternative arguments for dismissal, this Court may

nonetheless consider them. The Kenners have failed to plead their


-23-

causes of action with the particularity necessary to state a claim upon

which relief may be granted. The Kenners also did not properly serve

the complaint pursuant to Federal Rule of Civil Procedure 4.

The judgment of the District Court is correct and should be

affirmed.

ARGUMENT

THE DISTRICT COURT CORRECTLY GRANTED THEGOVERNMENT’S MOTION TO DISMISS FOR LACKOF JURISDICTION UNDER THE FEDERAL TORTCLAIMS ACT, AFTER CORRECTLY SUBSTITUTINGTHE UNITED STATES FOR THE INDIVIDUAL IRSDEFENDANTS

Standard of review

This Court reviews de novo a dismissal pursuant to Rule 12(b)(1).

See Viewtech, Inc. v. United States, 653 F.3d 1102, 1103-04

(9th Cir. 2011).

The Kenners have failed to challenge one of the bases of the

District Court’s decision – that the court lacked jurisdiction under the

FTCA because the Kenners had failed to file an administrative claim.

They therefore have waived that issue (Alaska Center for Environment


-24-

v. United States Forest Service, 189 F.3d 851, 858 n.4 (9th Cir. 1999)

(arguments not raised in the opening brief are waived)), and this Court

could summarily affirm on that basis alone. In any event, as discussed

below, the District Court’s decision was correct.

A. The Kenners did not file an administrative claim

To pursue a valid claim under the FTCA, a plaintiff must first file

an administrative claim with the relevant agency. The Act provides

that “[a]n action shall not be instituted upon a claim against the United

States for money damages . . . unless the claimant shall have first

presented the claim to the appropriate Federal agency and his claim

shall have been finally denied by the agency in writing . . . .” 28 U.S.C.

§ 2675(a). The requirement to exhaust administrative remedies is

jurisdictional. Absent exhaustion, the District Court lacks subject

matter jurisdiction over the case. See Valadez-Lopez v. Chertoff, 656

F.3d 851, 855 (9th Cir. 2011); Meridian International Logistics, Inc. v.

United States, 939 F.2d 740, 743 (9th Cir. 1991). There is no evidence

that the Kenners filed an administrative claim with regard to their

claims against the IRS employees, and they do not maintain that they


-25-

did. Accordingly, the District Court correctly dismissed the complaint

for failure to file an administrative claim.

B. The “tax exception” to the FTCA bars the Kenners’suit

Even if the Kenners had filed an administrative claim, suit would

be barred under the “tax exception” to the FTCA. The Act provides:

“The provisions of this chapter and section 1346(b) of this title shall not

apply to – . . . Any claim arising in respect of the assessment or

collection of any tax . . .” 28 U.S.C. § 2680(c). As with the requirement

to file an administrative claim, the exception is jurisdictional. See

Orsay v. United States Department of Justice, 289 F.3d 1125, 1136 (9th

Cir. 2002); Meridian International Logistics, 939 F.2d at 742-43.

The Kenners’ claims against the individual IRS defendants arise

with respect to the assessment and collection of their unpaid federal

tax liabilities. The Kenners’ current complaint is grounded in the

dismissal of their RICO lawsuit (Kenner I), which complained of the

payment of a lawsuit’s settlement proceeds to the IRS with respect to

those tax liabilities, and the IRS’s return of the Kenners’ offer in

compromise. Thus, the current lawsuit is intertwined with the subject


-26-

matter of the RICO lawsuit, which was, in essence, about the collection

of taxes. See, e.g., SER 8, ¶ 8 (describing RICO lawsuit); SER 17,

¶ 44(e) (“The IRS threatened all KENNER property in order to

intimidate and coerce KENNER into quitting the RICO lawsuit and

abandoning the appeal.”); SER 23, ¶ 50 [sic] (IRS Defendants “took part

in the conduct of the IRS enterprise to carry out . . . RICO predicate

crimes in order to unlawfully obtain settlement funds from a KENNER

lawsuit against their tax professionals, while a proper KENNER/IRS

Offer in Compromise . . . was pending.”)

The complaint also references alleged attempts by the IRS to

“seize,” “confiscate,” or “convert” the Kenners’ assets, apparently to

satisfy the Kenners’ outstanding tax liabilities. See, e.g., SER 16,

¶ 38(a) (“Conspirators attempted bank foreclosure of KENNER real

property assets”); SER 17, ¶ 44(d) (“persons at IRS illegally responded

with a Notice of Levy threatening confiscation of all KENNER property

and business assets”); SER 21, ¶ 69(b) (“conspirators threatened IRS

seizure of all KENNER assets, including their real property[,] in direct

violation of the IRC”); SER 23, ¶ 52 [sic] (“Illegal collection of the


-27-

KENNER-SHAF settlement directly destroyed KENNER’s ability to

compromise and settle their tax debt with the IRS.”); SER 28, ¶ 85

(“IRS RICO Defendants willfully misused the IRS and other IRS

employees to attempt illegal seizure of KENNER assets.”); SER 29,

¶ 101 (“The IRS RICO Defendants . . . knowingly and willfully agreed

to the conversion of KENNER real property”); SER 30, ¶ 108 (“RICO

Defendants . . . have willfully acted to seize or disrupt KENNER from

that [Kenner Horse Ranch] business.”).

The offer in compromise alluded to in the Kenners’ complaint was

made to resolve the Kenners’ outstanding tax liabilities, and the

alleged “seizure” or “conversion” of assets was the result of the IRS’s

attempt to collect those liabilities. The activity thus clearly falls within

the scope of the FTCA exception for “claims arising in respect of the

assessment or collection of any tax.” 28 U.S.C. § 2680(c). Indeed, the

Kenners appear to have conceded the applicability of this exception, at

least in part, because in arguing against the substitution of the United

States for the individual IRS employees, the Kenners stated that

“causes of action 5, 6, 7, 8, 9, 10, and 11 are causes in action based in


-28-

deceit, misrepresentation, or abuse of process or ostensibly arise in

respect of the assessment or collection of a tax.” (Doc. 56 at 6.)

Accordingly, the claims alleged against the United States, as a

substituted defendant, were properly dismissed by the District Court

because the FTCA does not extend to any claim involving the

assessment or collection of tax.

The Kenners argument on this issue, to the extent that it is

comprehensible, is that the Government purportedly contended that

claims regarding improper tax collection activity are actionable under

26 U.S.C. § 7433, not the FTCA. Because, according to the Kenners,

their abuse-of-process claims do not relate to collection activity or “a

Title 26 statute,” dismissal of those claims was error. (Br. 37.)

The Kenners are mistaken. As discussed above, although they

may have labeled their claims as ones for abuse of process, the claims,

in fact “[arose] in respect of the assessment or collection of any tax

. . . .” 28 U.S.C. § 2680(c). Further, claims of abuse of process also are

exempt from coverage under the FTCA. 28 U.S.C. § 2680(h) (FTCA


-29-

This exception also appears to be applicable to other claims8

made by the Kenners. To the extent that causes of action 2, 4 (claimsunder the Bane Act for essentially abuse of process) and claims 5, 7, 9,10, and 11 are based in “deceit, misrepresentation, or abuse of process”(Doc. 56 at 6), suit would be barred pursuant to 28 U.S.C. § 2680(h).

does not apply to any claim arising out of abuse of process,

misrepresentation, deceit).8

C. The Kenners’ allegations are otherwise without merit

The Kenners make numerous claims in their brief with regard to

the IRS employees. The majority of these claims are simply that –

claims – and not arguments. The mere mention of an issue,

unsupported by a developed, comprehensible argument, and supporting

authorities, is not sufficient to present it for review. See, e.g., United

States v. Williamson, 439 F.3d 1125, 1137 (9th Cir. 2006) (“Williamson

does not cite any law, provide any legal theory, or request any

particular relief with respect to such alleged error, but merely recites

it.”); Entertainment Research Group, Inc. v. Genesis Creative Group,

Inc., 122 F.3d 1211, 1217 (9th Cir. 1997)(Court reviews “only issues

which are argued specifically and distinctly” in the opening brief;

appellant must “present a specific, cogent argument”) (internal


-30-

quotations and citation omitted); Greenwood v. FAA, 28 F.3d 971, 977

(9th Cir. 1994) (“We will not manufacture arguments for an appellant,

and a bare assertion does not preserve a claim, particularly when, as

here, a host of other issues are presented for review.”) In any event, to

the extent that the Kenners’ claims can be deciphered, they are without

merit.

1. Service of notice of substitution

In their statement of the case, the Kenners claim that the United

States requested to be substituted as the defendant in place of the IRS

employees, and the District Court granted substitution without proper

notice to the Kenners. (Br. 8.) To buttress this argument, the Kenners

accuse the Department of Justice attorney of perjury, and accuse Judge

Benitez of collaboration with that attorney. (Br. 8, 9; see also Br. 31.)

The Kenners maintain that the notice of substitution was served

on January 17, 2012, not on January 5, 2012. (Br. 8.) The District

Court correctly determined that the document that was mailed on

January 17, 2012, was the Government’s reply to the Kenners’

opposition to the individual IRS defendants’ motion to dismiss, and that


-31-

the Kenners therefore timely received notice of the substitution. (SER

36-37.) In any event, once the Kenners received the order of

substitution, they did not move for reconsideration of the court’s order.

2. Substitution of the United States as defendant

The Kenners state: “The lawsuit is not a Federal Tort Claims Act

action. Moreover, KENNER argues here the substitution was improper

and unlawful.” (Br. 11.) The District Court, however, properly

substituted the United States for the IRS employee defendants.

As a threshold matter, the District Court correctly concluded that

the Kenners were alleging common law tort claims – such as abuse of

process and conversion – against the individual IRS defendants. (SER

32-33).

We note that in causes of action 2, 4, and 5, the Kenners alleged

violations of the Bane Act, which provides that “[a]ny individual whose

exercise or enjoyment of rights secured by the Constitution or laws of

the United States . . . has been interfered with” may bring an action for

civil damages may be brought in California state court. Ca. Civ. Code.

§ 52.1(b). Those causes of action only nominally alleged violations of


-32-

the Kenners’ “due process” and “constitutional” rights, and their

“constitutional right to appeal.” (See, e.g., SER 12, ¶¶ 21, 22; 16-17,

¶¶ 39-40; 17, ¶ 44.) Those claims were, in fact, simply a recasting of

the abuse-of-process claims in causes of action 7, 9, and 11, sometimes

using the identical language. (Compare SER 15-17 (cause of action 4)

with SER 21-22 (cause of action 9).) Thus, the Attorney General’s

certification and the District Court’s order that the complaint only

encompassed common law tort claims were correct.

Under the Federal Employees Liability Reform and Tort

Compensation Act of 1988 (commonly known as the Westfall Act),

federal employees receive absolute immunity from common law tort

claims arising out of acts they undertake “while acting within the scope

of [their] office or employment.” 28 U.S.C. § 2679(b)(1). When a federal

employee is sued for damages for wrongful or negligent conduct, the

statute “grants the Attorney General authority to certify that a federal

employee named defendant in a tort action was acting within the scope

of his or her employment at the time in question,” and if the Attorney

General makes such a certification, then “the United States must be


-33-

substituted as the defendant.” Osborn v. Haley, 549 U.S. 225, 240–41

(2007); see 28 U.S.C. § 2679(d)(1), (d)(2). The litigation then proceeds

pursuant to the FTCA.

As this Court has observed, “[t]he Attorney General’s decision

regarding scope of employment certification is conclusive unless

challenged.” Green v. Hall, 8 F.3d 695, 698 (9th Cir.1993) (per curiam).

Here, the Kenners did not challenge the scope of certification in the

District Court by asking for reconsideration of the court’s substitution

order, and thus the certification is conclusive. In short, the Kenners’

lawsuit against the individual IRS defendants here was properly

construed as a common law tort damages action, and the United States

was properly substituted as the defendant pursuant to the FTCA.

3. The Kenners’ miscellaneous arguments

The Kenners also appear to argue that because 26 U.S.C. § 7433

and the FTCA provide for recovery of damages from the United States,

thereby protecting the individual IRS employees from personal

liability, they should be permitted to bring their RICO lawsuit. (Br. 21-

24.) In addition, they request that this Court declare as


-34-

unconstitutional “provisions of the FTCA and 26 USC § 7433 whereby

federal employees are provided personal immunity for intentional

violation of the law” (Br. 24), allegedly because those provisions violate

the First and Fifth Amendments of the Constitution. (See Br. 20-21.)

First, the viability of the Kenners’ RICO lawsuit is at issue in the

pending appeal of that lawsuit, and is not an issue presented for review

in the instant appeal. Second, because the Kenners did not raise their

constitutional argument below, it is waived. See Hillis v. Heineman,

626 F.3d 1014, 1019 (9th Cir. 2010) (argument raised for first time on

appeal is waived). Finally, the arguments are simply meritless. See,

e.g., Landham v. Taylor, 68 Fed. Appx. 608, 611 (6th Cir. 2003)

(alternatively stating that arguments that FTCA violated Fourth, Fifth,

and Eighth Amendment were “entirely without merit.”)

Finally, apparently in respect to the Government’s asserting that

their complaint failed to assert a claim upon which relief could be

granted (Br. 37-38), the Kenners complain that they should have been

granted leave to amend their complaint. Amendment in this case

would, however, have been legally and factually futile (see Chappel v.


-35-

Laboratory Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000)),

because the District Court plainly lacked subject matter jurisdiction

under the FTCA. The Kenners did not file an administrative claim, as

required by 28 U.S.C. § 2675(a), prior to filing suit, and do not contend

that they did. Moreover, their suit is plainly a reaction to, and an effort

to challenge, the assessment and collection of federal taxes, and it is,

therefore, barred by the tax exception to the FTCA. 28 U.S.C.

§ 2680(c).

D. The IRS’s alternative arguments also provide a basisfor dismissal

Although the District Court did not address the Government’s

other arguments because the FTCA ruling was dispositive, the Court

may nonetheless consider those arguments as further grounds for

dismissal. See Atel Financial Corp. v. Quaker Coal Co., 321 F.3d 924,

926 (9th Cir. 2003) (this court may affirm a district court’s decision on

any ground supported by the record).


-36-

1. The complaint fails to state a claim upon whichrelief may be granted.

The Kenners have failed to plead their case with the particularity

necessary to state a claim upon which relief may be granted. None of

the causes of action alleges specific facts sufficient, inter alia, to provide

the United States (or the court) with notice why the conduct was

actionable. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (complaint

must have sufficient factual allegations to make cause of action

“plausible on its face”) (internal quotations and citation omitted); Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (complaint must

have a short and plain statement of the claim to give the defendant

“fair notice,” which provides more than “labels and conclusions” and a

“formulaic recitation” of the cause of action).

With regard to causes of action 2, 4, and 5 (Bane Act/abuse-of-

process claims) (SER 10-12, 15-18), the Kenners make “group”

allegations. Their claims are devoid of any specific allegations with

regard to any of the individual IRS defendants.

Similar deficiencies plague the remaining causes of action. With

regard to the abuse-of-process causes of action (SER 19-20, 21-28), this


-37-

tort “arises when one uses the court’s process for a purpose other than

that for which the process was designed.” To succeed in an action for

abuse of process, a litigant must show “that the defendant

(1) contemplated an ulterior motive in using the process; and

(2) committed a willful act in the use of the process not proper in the

regular conduct of the proceedings.” See Brown v. Kennard, 94 Cal.

App. 4th 40, 44, 113 Cal. Rptr. 2d 891, 894 (2001) (internal quotations

and citations omitted). Again, the Kenners have failed to allege how

any actions of the IRS employees constituted an abuse of process – that

is, how they were not proper in the regular course of proceedings –

and, indeed the Kenners often fail to attribute actions to a specific IRS

defendant.

With regard to the cause of action for conversion (SER 29-30), the

Kenners failed to allege the particulars of conspiracy – what actions

were taken by each defendant and when the activity occurred. They

also fail to allege exactly what “real property” was the subject of the

purported “conversion.”


-38-

Finally, with regard to the cause of action for interference with

economic relationships (SER 30), the Kenners again failed to attribute

actions to a specific IRS defendant, or, even to allege a time period

when the actions occurred.

2. The United States was not properly served

The Kenners did not properly serve the complaint. “A federal

court does not have jurisdiction over a defendant unless the defendant

has been served properly under Fed. R. Civ. P. 4.” Direct Mail

Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685,

688 (9th Cir. 1988). Under Rule 4(i), service upon an agency’s

employees and on the United States requires service upon both the

United States Attorney’s Office and the Attorney General. The

Kenners did not provide evidence that they served the United States

Attorney’s Office and the Attorney General. (See Doc. 22 at 23

(Kenners stated that because the lawsuit was filed in state court, they

did not serve the United States as required by Rule 4(i)).)


-39-

CONCLUSION

For the reasons given above, the judgment of the District Court is

correct and should be affirmed.

Respectfully submitted,

KATHRYN KENEALLY Assistant Attorney General

/s/Gretchen M. Wolfinger

BRIDGET M. ROWAN (202) 514-1840GRETCHEN M. WOLFINGER (202) 616-7611 Attorneys

Tax Division, U.S. Department of Justice Post Office Box 502 Washington, D.C. 20044

Of Counsel:

LAURA E. DUFFY United States Attorney

NOVEMBER 2012


-40-

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, counsel for the appellee

state that they are aware of the following related cases:

Kenner v. Kelly et al. (9th Cir. No. 11-56062) - appeal pending

Kenner v. Kelly et al. (9th Cir. No. 12-55287) - appeal dismissed onMarch 12, 2012

Kenner v. Kelly et al. (9th Cir. No. 12-55758) - appeal dismissed onMay 8, 2012

/s/Gretchen M. Wolfinger GRETCHEN M. WOLFINGER Attorney


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Certificate of Compliance With Type-Volume Limitation,Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R.App. P. 32(a)(7)(B) because:

[X] this brief contains 6,835 words, excluding the parts of thebrief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state thenumber of] lines of text, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R.App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.32(a)(6) because:

[X] this brief has been prepared in a proportionally spacedtypeface using Corel Word Perfect X3 in Century Schoolbook14 pt. type, or

[ ] this brief has been prepared in a monospaced typeface using[state name and version of word processing program] with[state font size and name of type style].

(s) Gretchen M. Wolfinger_______________________________________Attorney

for Appellee

Dated: November 27, 2012


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CERTIFICATE OF SERVICEWhen Not All Case participants are Registered for the

Appellate CM/ECF System

I hereby certify that on November 27, 2012, I electronically filed theforegoing brief with the Clerk of the Court for the United States Courtof Appeals for the Ninth Circuit by using the appellate CM/ECFsystem.

Participants in the case who are registered CM/ECF users will beserved by the appellate CM/ECF system.

I further certify that the pro se appellants, the only other participant inthe case, is not a registered CM/ECF user. I have mailed the foregoingdocument by First-Class Mail, postage prepaid, or have dispatched it toa third party commercial carrier for delivery within 3 calendar days tothem at the following address:

Brian and Kathleen Kenner17550 Harrison Park RoadP.O. Box 427Julian, California 92036

Signature /s/ Gretchen M. Wolfinger


no. 12-56358 in the united states court of...

Documents