No. 94-2118		

In the Supreme Court of the United States

OCTOBER TERM, 1995

WILLIAM T. CONKLIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

LORETTA C. ARGRETT
Assistant Attorney General

JONATHAN S. COHEN
Attorney

Department of Justice
Washington,D.C. 20530
(202)514-2217

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     QUESTION PRESENTED

Whether an award of attorney's fees for prosecuting
a frivolous appeal was properly entered against peti-
tioner.

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 3
Conclusion . . . .  7

TABLE OF AUTHORITIES

Baskin v. United States, 738 F.2d 975 (8th Cir. 1984) . . . . 5
Betz v. United States, 753 F.2d 834 (10th Cir. 1985)  . . . .  5
Brooks v. Allison Div. of General Motors Corp., 874
F.2d 483 (7th Cir. 1989)  . . . .  3,4
Chambers v. NASCO, Inc., 501 U.S. 32 (1991)  . . . .  5
Church of World Peace v. Commissioner, 52 F.3d
337 (10th Cir. 1995)  . . . . 6 
Church of World Peace, Inc. v. United States, 86-1
U.S.T.C. Par. 9375 (D. Colo. 1986)  . . . . 6 
Conklin v. Commissioner:
54 T.C.M. (CCH) 173 (1987)  . . . .  6
897 F.2d 1027 (10th Cir. 1990)  . . . .  6
Conklin v. United States:
85-2 U.S.T.C. Par. 9534 (D. Colo. 1985)  . . . . 6 
812 F.2d 1318 (10th Cir. 1987)  . . . .  6
36 F.3d 1105 (10th Cir.), cert. denied, 115 S. Ct.
  583 (1994)  . . . .  6
No. 95-1013 (10th Cir. July 31, 1995)  . . . .  6
Either v. United States, 774 F.2d 27 (1st Cir. 1985)  . . . . 5 
Haines v. Kerner, 404 U.S. 519 (1972)  . . . .  6
McKnight v. General Motors Corp., 114 S. Ct. 1826
(1994)  . . . .  5
Pleasant v. Lovell, 974 F.2d 1222 (10th Cir. 1992)  . . . . 6 
Steinbrecher v. Commissioner, 712 F.2d 195 (5th Cir.
1983)  . . . .  5

(III)

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Iv

Cases-Continued:

Page

United States v. Church of World Peace, 775 F.2d 265
(10th Cir. 198.5), appeal after remand, 878 F.2d 1281
(10th Cir. 1989)  . . . .  6

Constitution, statutes and rule:

U.S. Const. Amend. V  . . . .  2, 4, 5
Internal Revenue Code (26 U.S.C.)
 6702  . . . .  2
 6703(c)  . . . .  2
10th Cir. R. 27.2.1  . . . .  4

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In the Supreme Court of the United States

OCTOBER TERM, 1995

NO. 94-2118

WILLIAM T. CONKLIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 15-18)
is unpublished, but the decision is noted at 56 F.3d 77
(Table). The order of the district court was delivered
orally from the bench at the conclusion of a hearing
and is not officially reported.

      JURISDICTION

The judgment of the court of appeals was entered on
June 6, 1995 (Pet. App. 15). The petition for a writ of
certiorari was filed on June 26, 1995. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

(1)

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2

STATEMENT

1. Although petitioner filed an income tax return
for 1987, he refused to sign it. He claimed that
signing his return would waive his rights under the
Fifth Amendment to the United States Constitution.
The Internal Revenue Service assessed a $500 penal-
ty against petitioner under Section 6702 of the In-
ternal Revenue Code for filing a frivolous return.
Petitioner paid $75 of the penalty and sued for a re-
fund in district court. See 26 U.S.C. 6703(c) (1988 &
Supp. v 1993).
The district court granted summary judgment to
the United States. The court held that petitioner's
blanket assertion of a Fifth Amendment privilege was
a frivolous ground for not signing his return and
justified imposition of a frivolous return penalty
under Section 6702.
2. The court of appeals affirmed (Pet. App. 23-30)
and also imposed attorney's fees and double costs as a
sanction for petitioner's frivolous appeal (id. at 29).
The court remanded the case to the district court "to
make the appropriate determinations" as to the
amount of counsel fees (ibid.). This Court denied the
petition for a writ of certiorari that petitioner filed
from the judgment of the court of appeals. 115 S. Ct.
583 (1994).
3. On remand, the district court awarded attor-
ney's fees of $5,999.36 to the government. The court
stated that "the rate claimed by government counsel
was not challenged and the time spent in first de-
termining the nature of [petitioner's] claims and then
meeting them was reasonable" (Pet. App. 16-17).
4. The court of appeals affirmed (Pet. App. 15-22).
The court noted that, under the order of remand from

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the original appeal, the only issues properly before
the district court were the reasonable time and
reasonable charges for the work performed by govern-
ment counsel. Since petitioner offered no evidence on
either of those issues, the court of appeals upheld the
district court's calculation of the proper award (id. at
16-18).
The court declined petitioner's invitation to recon-
sider the appropriateness of an award of fees for the
prior frivolous appeal. The court noted that "[t]hese
matters have already been decided, and we will not
rehear them" (id. at 17).

        ARGUMENT

The decision of the court of appeals is correct and
does not conflict with any decision of this Court or
any other court of appeals. Further review is there-
fore not warranted.
1. This Court denied the petition for a writ of
certiorari from the order directing the award of attor-
ney's fees for petitioner's frivolous appeal. 115 S. Ct.
683 (1994). On remand from that order, the district
court properly determined that the reasonable attor-
ney's fees for the frivolous appeal was $5,999.36.
Petitioner offered no evidence to support any differ-
ent award. The court of appeals therefore correctly
affirmed the award.
2. Relying cm Brooks v. Allison Div. of General
Motors Corp., 874 F.2d 489, 490 (7th Cir. 1989),
petitioner contends (Pet. 11) that the award of attor-
ney's fees was inappropriate in this case because the
government failed to mitigate its damages. That
contention is incorrect.
In Brooks, the district court awarded summary
judgment to the defendant because the statute of

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limitations barred the plaintiff's claim. The plaintiff
appealed but failed to specify any particular error in
the decision below. Instead of filing a motion to
dismiss the appeal as frivolous, the appellee filed a
brief on the merits. The Seventh Circuit stated that,
by failing to file a motion to dismiss the appeal as
frivolous, appellee had failed to mitigate the burdens
that the frivolous pleading imposed upon it. 874 F.2d
at 490.
In the present case, however, Rule 27.2.1 of the
Rules of the Tenth Circuit provides that a motion to
dismiss may be filed "only on the ground that the
appeal is not within the jurisdiction of this court ."
The government was therefore required to file an
answering brief in response to petitioner's appeal.
The award of fees in this context was appropriate.
3. Petitioner seeks to renew his contention that it
was error to award fees as a sanction for his original
frivolous appeal. His arguments, although not en-
tirely clear, appear to be that: (i) he was denied due
process when, on remand to the district court, he was
not allowed to challenge the order that sanctions be
entered; (ii) an award of fees for a frivolous appeal is
inappropriate in this case because his Fifth Amend-
ment objection to signing his income tax return pre-
sented a question of first impression; and (iii) the
award of fees was inappropriate because he is a pro se
litigant and reasonably relied upon the law as he
understood it. None of these claims has merit.
(i) Petitioner received due process in challenging
the sanctions entered against him by participating in
the appeal from which the order of sanctions was
entered and by petitioning this Court for a writ of
certiorari from that order. Petitioner received due
process in challenging the calculation of the fee

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award by appearing in the district court to contest
the award, by appealing that award to the court of
appeals and by petitioning from the affirmance of that
order to this Court. No further or other process is
due. (ii) The Fifth Amendment claim that petitioner
asserts does not present a question of first impres-
sion. As the court of appeals noted at the time that it
entered the award of fees as a sanction for petitioner's
frivolous appeal, "[i]t is well settled that the Fifth
Amendment general objection (to filing a proper tax
return) is not a valid claim of the constitutional
privilege" (Pet. App. 27, quoting Betz v. United
States, 753 F.2d 834, 835 (10th Cir. 1985)). See also
Either v. United States, 774 F.2d 27 (1st Cir. 1985);
Baskin v. United States, 738 F.2d 975 (8th Cir. 1984);
Steinbrecher v. Commissioner, 712 F.2d 195 (5th Cir.
1983).
Aside from the fact that petitioner's case obviously
does not present a question of first impression,
petitioner errs in contending that attorney's fees may
not be awarded in a case that presents a frivolous
question of first impression. The cases on which
petitioner relies (Pet. 11) do not support that
proposition. In McKnight v. General Motors Corp.,
114 S. Ct. 1826 (1994), the Court vacated sanctions
against petitioner when the appeal was filed to pre-
serve an issue that the Supreme Court had not then
decided where the answer "was not so clear as to
make petitioner's position frivolous." Ibid. And, in
Chambers v. NASCO, Inc., 501 U.S. 32 (1991), which
petitioner cites without explanation, the Court upheld
an award of attorney's fees for bad faith in the conduct
of litigation. Id. at 55. The decision of the court of

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appeals in this case does not conflict with either of
those decisions.
(iii) Petitioner appears to rely (Pet. 8-9) on Haines
v. Kerner, 404 U.S. 519 (1972), for the proposition that
it was error to award fees against him because he is a
pro se litigant.  In Haines, the Court found that
certain "inartfully pleaded" allegations of a pro se
litigant were sufficient to withstand a motion to
dismiss. Id. at 520. In this case, by contrast, peti-
tioner's allegations were clear; but they were also
clearly frivolous.

___________________(footnotes)

* Petitioner has a lengthy history of litigation in the courts
below. See, e.g., Conklin v. United States, No. 95-1013 (10th Cir.
July 31, 1995); Church of World Peace v. Commissioner, 52 F.3d
337 (10th Cir. 1995) (Table); Conklin v. United States, 36 F.3d
1105 (10th Cir.) (Table), cert. denied, 115 S. Ct. 583 (1994);
Pleasant v. Lowell, 974 F.2d 1222 (10th Cir. 1992); Conklin v.
Commissioner, 897 F.2d 1027 (10th Cir. 1990); United States v,
Church of World Peace, 878 F.2d 1281 (10th Cir. 1989); Conklin
v. United States, 812 F.2d 1318 (10th Cir. 1987); United States
v. Church of World Peace, 775 F.2d 265 (10th Cir. 1985); Conklin
v. Commissioner, 54 T.C.M. (CCH) 173 (1987); Church of World
Peace, Inc. v. United States, 86-1 U.S.T.C. Par. 9375 (D. Colo.
1986); Conklin v. United States, 85-2 U.S.T.C. Par. 9534 (D. Colo.
1985).

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7

 CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

 LORETTA C. ARGRETT
 Assistant Attorney General

JONATHAN S. COHEN
Attorney

 AUGUST 1995