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 The June 6, 2005 Findings and Recommendations are amended to reflect that the 1

hearing on plaintiff’s motion for summary judgment took place on June 2, 2005, and Mr.

Jennings appeared in person.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff, No. CIV S-04-2363 WBS JFM PS

vs.

MARK L. BRYAN, AMENDED1

Defendant. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff’s motion for summary judgment came on regularly for hearing June 2,

2005. G. Patrick Jennings, Trial Attorney, Tax Division, United States Department of Justice,

appeared for plaintiff. Defendant appeared in propria person. Upon review of the motion and

the documents in support and opposition, upon hearing the arguments of defendant and counsel

and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

I. Background

Defendant Mark L. Bryan (hereinafter referred to as "Defendant") is an individual

who has previously brought actions against the Internal Revenue Service (hereinafter the "IRS")

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 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 2

803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

2

seeking relief from the assessment and collection of taxes and liens. See Bryan v. Gillen, CIV 2

S-04-1481 DFL GGH PS; Bryan v. Gillen, CIV S-04-1942 DFL GGH PS.) Defendant has filed

UCC Financing Statements which are liens encumbering property of certain government

employees who were involved in the IRS seizures of defendant’s property and the related

litigation thereafter. The United States filed its complaint on November 4, 2004 seeking

declaratory relief that the UCC Financing Statements filed by defendant are null, void and of no

legal effect and for permanent injunctions enjoining defendant from filing any further documents

which purport to create a non-consensual lien or encumbrance against the person or property of

any government employee.

Defendant was personally served with process on December 16, 2004. (Docket

No. 7.) Plaintiff first filed a motion for summary judgment on April 1, 2005. An amended

motion for summary judgment was filed on April 7, 2005. By minute order filed April 29, 2005,

the hearing on plaintiff’s motion was continued from May 19, 2005 to June 2, 2005. Defendant

was properly served with the motions for summary judgment. (See Docket Nos. 23, 26 & 31.) 

This court has jurisdiction over these claims under 28 U.S.C. § 1345 and Internal

Revenue Code § 7402(a). 

II. Standards for a Motion for Summary Judgment

Summary judgment is appropriate when it is demonstrated by a party that “there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A party may seek summary judgment on all or any part of

another party’s claims. Id. The moving party 

always bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of “the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,” which it believes

demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the

nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary

judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers

to interrogatories, and admissions on file.’” Id. 

Summary judgment should be entered, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will bear the burden of proof at

trial. Id. at 322. “[A] complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.” Id. Summary judgment

should be granted “so long as whatever is before the district court demonstrates that the standard

for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.

If the moving party meets its initial responsibility, the burden shifts to the

opposing party to establish that a genuine issue as to any material fact does exist. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

existence of this factual dispute, the opposing party may not rely upon the allegations or denials

of his pleadings but is required to tender evidence of specific facts in the form of affidavits

and/or admissible discovery material in support of the contention that a dispute exists. Fed. R.

Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The party opposing summary judgment must

show that any fact in contention is material, i.e., a fact that might affect the outcome of the suit

under the governing law, and that the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d

626, 630 (9th Cir. 1987); Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In trying to establish the existence of a factual dispute, the party opposing

summary judgment need not establish a material issue of fact conclusively in his or her favor. It

is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the

“purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P.

56(e) advisory committee’s note on 1963 amendments).

The evidence of the party opposing summary judgment is to be believed, and all

reasonable inferences that may be drawn from the facts placed before the court must be drawn in

favor of the party opposing summary judgment. Anderson, 477 U.S. at 255; Matsushita, 475

U.S. at 587. Inferences will not be drawn out of the air, however; it is the opposing party’s

obligation to produce a factual predicate from which an inference may be drawn. Richards v.

Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902

(9th Cir. 1987). The opposing party “must do more than simply show that there is some

metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”

Matsushita, 475 U.S. at 587 (citation omitted).

III. Undisputed Facts

1. In the course of his official IRS duties, Revenue Officer Gregory Gillen was

assigned to collect an unpaid Trust Fund Recovery Penalty and secure unfiled tax returns from

Mark L. Bryan. (Gillen Decl. at ¶ 2.) 

2. Defendant caused the following documents to be filed with the Secretary of

State of the State of California:

Date Filed Document Title Filed Against

June 28, 2004 UCC Financing Statement Commissioner Mark W. Everson

$477,546,696.00 Revenue Officer Gregory Gillen

Revenue Officer Stephanie Hart

Revenue Officer Bill Ryder

Group Manager Michael Rockwell

Program Manager John Tam

Examination Manager Dennis Parizek

Compliance Service Field Director

Thomas D. Mathews

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July 16, 2004 UCC Financing Statement Revenue Officer Gregory Gillen

Amendment

$97,906,623,613.92

(Jennings Decl., Exs. A & B.)

3. At all times pertinent to this action, Mark W. Everson was the Commissioner

of the Internal Revenue Service and Gregory Gillen, Stephanie Hart, Michael Rockwell, John

Tam, Bill Ryder, Dennis Parizek and Thomas D. Mathews were officers or employees of the

Internal Revenue Service (hereinafter the “IRS employees”). (Gillen Decl., Hart Decl.,

Reynolds’ Decl., Rockwell Decl., Mathews’ Decl. and Parizek Decl., ¶ 1.)

4. None of the IRS employees are personally acquainted with defendant and none

have had any contact or relationship with him other than in their official capacity with the

Internal Revenue Service. None of the IRS employees has engaged in any contract or personal

transaction with defendant and none owe defendant money. There is no legitimate reason for

defendant to impose a lien on the personal property of the IRS employees. (Id., ¶¶ 2, 3, 4.) 

5. The IRS employees are aware of the false Financing Statements that defendant

filed against them with the office of the California Secretary of State. The Financing Statements

have caused them to experience distress and anxiety. For example, the IRS employees are

concerned that defendant’s Financing Statements may have a negative impact on their permanent

credit record. The names of the IRS employees appear in the ChoicePoint commercial database

as defendant’s debtor as a result of the filing of the Financing Statements. (Id., ¶¶ 4, 5.)

IV. Analysis

Internal Revenue Code § 7402(a) grants district courts jurisdiction to "render such

judgments and decrees as may be necessary or appropriate for the enforcement of the internal

revenue laws." I.R.C. § 7402(a); see Ryan v. Bilby, 764 F.2d 1325, 1327 (9th Cir. 1985). The

Ninth Circuit has found that § 7402(a) “empowers the district court to void common-law liens

imposed by taxpayers on the property of government officials assigned to collect delinquent

taxes.” Ryan v. Bilby, 764 F.2d at 1327; see also Cook v. Peter Kiewit Sons Co., 775 F.2d 1030,

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 In his April 27, 2005 “Objection to Plaintiff’s Motion for Summary Judgment,” 3

defendant asks the court to order plaintiff to respond to these documents or, in the alternative, to

dismiss this case for failure to state a claim upon which relief can be granted. This request is

similar to defendant’s motions to dismiss filed May 24, 2005, March 4, 2005, and February 14,

2005, and his motions to quash filed January 4 and 19, 2005. In light of the instant findings and

recommendations, defendant’s request and motions should also be denied.

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1035 (9th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); United States v. Ekblad, 732 F.2d 562,

563 (7th Cir.1984); United States v. Hart, 701 F.2d 749, 750 (8th Cir.1983); see also United

States v. Van Dyke, 568 F.Supp. 820 (D.Or.1983) (enjoining the filing of common-law liens to

harass IRS employees and thereby deter enforcement of the tax laws). 

Defendant has provided no evidence demonstrating that these UCC Financing

Statements are based on legitimate debt or law, or controverting the undisputed facts set forth

above. Rather, defendant has provided copies of documents, for example, “Notice of

International Commercial Claim Administrative Remedy,” “Notice of Fault-Opportunity to

Cure,” “Notice of Demand and Settlement for Closing of Escrow,” “Contractual and Final Notice

of Demand and Settlement for Closing of the Escrow,” and “Notarial Protest and Notice of

Administrative Judgment Certificate of Dishonor,” all of which appear to be created by defendant

and none of which have been adjudicated in a court of law. It appears defendant believes the 3

debt arose as a result of IRS Revenue Officer Gillen’s failure to respond when defendant mailed

these documents to Officer Gillen. However, as noted by plaintiff, courts do not recognize the

legality of such a “lien.” United States v. Andra, 923 F.Supp. 157, 159-60 (D. Idaho 1996). 

Defendant has not provided any evidence of a contractual or other legal relationship with Officer

Gillen or other IRS representatives to establish the validity of the UCC Financing Statements

defendant filed. 

After carefully reviewing the record, this court finds that the UCC Financing

Statements filed by defendant are frivolous devices used to harass government employees. Thus,

the liens are non-consensual, non-judicial and non-statutory liens and should be declared null and

void. Because there are no genuine issues of material fact, plaintiff's motion for summary

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judgment should be granted. The "liens" placed by defendant on the IRS employees' property

have no basis in law or in fact. Further, 26 U.S.C.A. § 7402(a) allows the Court to expunge such

liens from county records. Ryan v. Bilby, 764 F.2d 1325 (9th Cir.1985).

V. Injunction

Plaintiff also seeks an injunction enjoining defendant from filing any document or

instrument which purports to create a non-consensual lien or encumbrance of any kind against

any employee of the federal government. Injunctive relief is available to a party who

demonstrates either (1) a combination of probable success on the merits and the possibility of

irreparable harm; or (2) that serious question are raised and the balance of hardship tips in its

favor.” Sammartano v. First Judicial District Court in and for the County of Carson City, 303

F.3d 959, 965 (9th Cir. 2002). 

Plaintiff has demonstrated success on the merits as noted above. The actions of

defendant, in filing these UCC Financing Statements, also impose irreparable harm upon the

employees of the federal government with whom defendant quarrels. These false liens

potentially cloud title to property owned by the IRS employees and damage their credits ratings

as well. Moreover, these false liens “threaten substantial interference with the administration and

enforcement of the Internal Revenue laws.” United States v. Hart, 545 F.Supp. 470, 473 (D.N.D.

1982), aff’d, 701 F.2d 749 (8th Cir. 1983). 

The IRS employees will suffer harm if an injunction is not granted. Because these

UCC Financing Statements have no factual or legal basis and thus are of no legal effect,

defendant will not be injured by an injunction which enjoins him from filing similar nonconsensual common law liens or encumbrances in the future. See In re Martin-Trigona, 763 F.2d

140, 141-42 (2nd Cir. 1985), cert. denied, 474 U.S. 1061 (1986). Thus the balance of hardships

tips in plaintiff’s favor.

Finally, this court finds that the public interest will be served by an injunction

forbidding this harassment in the future, and such an injunction should issue. Title 26 U.S.C.

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§ 7402 authorizes this court to make such orders as are necessary for the enforcement of the

internal revenue laws. See United States v. Hart, supra. Although political expression must not

be foreclosed, harassment of federal employees in their personal lives should be. 

VI. Recommendation

Based upon the foregoing IT IS HEREBY RECOMMENDED that:

1. Plaintiff's April 1, 2005 motion for summary judgment be granted and judgment

for plaintiff be entered on all claims.

2. Any UCC Financing Statement which purports to create a lien or any other

non-consensual lien or encumbrance filed by defendant or against the person or property of any IRS

employee or others who authorized and/or performed any act in connection with the assessment or

collection of defendant’s tax liabilities be declared null and void ab initio and declared to have no

force and effect.

3. An order may be filed and recorded by the United States with the California

Secretary of State, any county clerk's office, assessor's office, or registrar of deeds in the state of

California where such liens have or will be filed by defendant.

4. Regardless of nomenclature, caption, title, or terms used to describe the document,

Mark L. Bryan should be permanently enjoined from filing, or attempting to file, any document or

instrument which purports to create a lien or any other purported non-consensual lien or

encumbrance against the person or property of the above named IRS employees or others who

authorized and/or performed any act in connection with the assessment or collection of defendant’s

tax liabilities.

However, this recommended permanent injunction should not prevent defendant from

applying to any state or federal court of competent jurisdiction in order to obtain relief of any

non-frivolous legal claim, and this recommended injunction should not apply to or prohibit liens

lawfully created by any judgment of a court of competent jurisdiction.

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 It is furtherrecommended that willful violation of this order shall be punished by fine

or imprisonment, or both.

5. An order be entered specifically declaring and adjudging that the UCC Financing

Statements filed against Mark W. Everson, GregoryGillen, Stephanie Hart, Michael Rockwell, John

Tam, Bill Ryder, Dennis Parizek and Thomas D. Mathews are null, void and of no legal effect.

6. Defendant’s February 14, 2005, March 4, 2005 and May 24, 2005 motions to

dismiss (docket Nos. 14, 15 & 35) be denied.

7. Defendant’s January4, 2005 and January19, 2005,motions to quash (docket Nos.

8 & 9) be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten 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. Such a document should be captioned "Objections to

Magistrate Judge's Findings and Recommendations." Anyreplyto the objections shall be served and

filed within ten days after service of the objections. The parties are advised that failure to file

objections within the specified time may waive the right to appeal the District Court's order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: June 16, 2005.

001; bryan.msja

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